Page 467 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1342

quality requirements such Federal agency may, Federal license or permit will comply with any after public hearing, suspend such license or per- applicable effluent limitations and other limita- mit. If such license or permit is suspended, it tions, under section 1311 or 1312 of this title, shall remain suspended until notification is re- standard of performance under section 1316 of ceived from the certifying State, agency, or Ad- this title, or prohibition, effluent standard, or ministrator, as the case may be, that there is pretreatment standard under section 1317 of this reasonable assurance that such facility or activ- title, and with any other appropriate require- ity will not violate the applicable provisions of ment of State law set forth in such certification, section 1311, 1312, 1313, 1316, or 1317 of this title. and shall become a condition on any Federal li- (5) Any Federal license or permit with respect cense or permit subject to the provisions of this to which a certification has been obtained under section. paragraph (1) of this subsection may be sus- (June 30, 1948, ch. 758, title IV, § 401, as added pended or revoked by the Federal agency issuing Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 877; such license or permit upon the entering of a amended Pub. L. 95–217, §§ 61(b), 64, Dec. 27, 1977, judgment under this chapter that such facility 91 Stat. 1598, 1599.) or activity has been operated in violation of the applicable provisions of section 1311, 1312, 1313, AMENDMENTS 1316, or 1317 of this title. 1977—Subsec. (a). Pub. L. 95–217 inserted reference to (6) Except with respect to a permit issued section 1313 of this title in pars. (1), (3), (4), and (5), under section 1342 of this title, in any case struck out par. (6) which provided that no Federal where actual construction of a facility has been agency be deemed an applicant for purposes of this sub- lawfully commenced prior to April 3, 1970, no section, and redesignated par. (7) as (6). certification shall be required under this sub- section for a license or permit issued after April § 1342. National pollutant discharge elimination 3, 1970, to operate such facility, except that any system such license or permit issued without certifi- (a) Permits for discharge of pollutants cation shall terminate April 3, 1973, unless prior to such termination date the person having such (1) Except as provided in sections 1328 and 1344 license or permit submits to the Federal agency of this title, the Administrator may, after op- which issued such license or permit a certifi- portunity for public hearing issue a permit for cation and otherwise meets the requirements of the discharge of any pollutant, or combination this section. of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge (b) Compliance with other provisions of law set- will meet either (A) all applicable requirements ting applicable water quality requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 Nothing in this section shall be construed to of this title, or (B) prior to the taking of nec- limit the authority of any department or agency essary implementing actions relating to all such pursuant to any other provision of law to re- requirements, such conditions as the Adminis- quire compliance with any applicable water trator determines are necessary to carry out the quality requirements. The Administrator shall, provisions of this chapter. upon the request of any Federal department or (2) The Administrator shall prescribe condi- agency, or State or interstate agency, or appli- tions for such permits to assure compliance with cant, provide, for the purpose of this section, the requirements of paragraph (1) of this sub- any relevant information on applicable effluent section, including conditions on data and infor- limitations, or other limitations, standards, reg- mation collection, reporting, and such other re- ulations, or requirements, or water quality cri- quirements as he deems appropriate. teria, and shall, when requested by any such de- (3) The permit program of the Administrator partment or agency or State or interstate agen- under paragraph (1) of this subsection, and per- cy, or applicant, comment on any methods to mits issued thereunder, shall be subject to the comply with such limitations, standards, regula- same terms, conditions, and requirements as tions, requirements, or criteria. apply to a State permit program and permits is- (c) Authority of Secretary of the Army to permit sued thereunder under subsection (b) of this sec- use of spoil disposal areas by Federal li- tion. censees or permittees (4) All permits for discharges into the navi- gable waters issued pursuant to section 407 of In order to implement the provisions of this this title shall be deemed to be permits issued section, the Secretary of the Army, acting under this subchapter, and permits issued under through the Chief of Engineers, is authorized, if this subchapter shall be deemed to be permits is- he deems it to be in the public interest, to per- sued under section 407 of this title, and shall mit the use of spoil disposal areas under his ju- continue in force and effect for their term unless risdiction by Federal licensees or permittees, revoked, modified, or suspended in accordance and to make an appropriate charge for such use. with the provisions of this chapter. Moneys received from such licensees or permit- (5) No permit for a discharge into the navi- tees shall be deposited in the Treasury as mis- gable waters shall be issued under section 407 of cellaneous receipts. this title after October 18, 1972. Each application (d) Limitations and monitoring requirements of for a permit under section 407 of this title, pend- certification ing on October 18, 1972, shall be deemed to be an Any certification provided under this section application for a permit under this section. The shall set forth any effluent limitations and Administrator shall authorize a State, which he other limitations, and monitoring requirements determines has the capability of administering a necessary to assure that any applicant for a permit program which will carry out the objec-

wq-rule3-60u § 1342 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 468 tives of this chapter to issue permits for dis- (5) To insure that any State (other than the charges into the navigable waters within the ju- permitting State), whose waters may be affected risdiction of such State. The Administrator may by the issuance of a permit may submit written exercise the authority granted him by the pre- recommendations to the permitting State (and ceding sentence only during the period which be- the Administrator) with respect to any permit gins on October 18, 1972, and ends either on the application and, if any part of such written rec- ninetieth day after the date of the first promul- ommendations are not accepted by the permit- gation of guidelines required by section 1314(i)(2) ting State, that the permitting State will notify of this title, or the date of approval by the Ad- such affected State (and the Administrator) in ministrator of a permit program for such State writing of its failure to so accept such recom- under subsection (b) of this section, whichever mendations together with its reasons for so date first occurs, and no such authorization to a doing; State shall extend beyond the last day of such (6) To insure that no permit will be issued if, period. Each such permit shall be subject to in the judgment of the Secretary of the Army such conditions as the Administrator deter- acting through the Chief of Engineers, after con- mines are necessary to carry out the provisions sultation with the Secretary of the department of this chapter. No such permit shall issue if the in which the Coast Guard is operating, anchor- Administrator objects to such issuance. age and navigation of any of the navigable wa- (b) State permit programs ters would be substantially impaired thereby; (7) To abate violations of the permit or the At any time after the promulgation of the permit program, including civil and criminal guidelines required by subsection (i)(2) of sec- penalties and other ways and means of enforce- tion 1314 of this title, the Governor of each State ment; desiring to administer its own permit program (8) To insure that any permit for a discharge for discharges into navigable waters within its from a publicly owned treatment works includes jurisdiction may submit to the Administrator a conditions to require the identification in terms full and complete description of the program it of character and volume of pollutants of any sig- proposes to establish and administer under nificant source introducing pollutants subject to State law or under an interstate compact. In ad- pretreatment standards under section 1317(b) of dition, such State shall submit a statement this title into such works and a program to as- from the attorney general (or the attorney for sure compliance with such pretreatment stand- those State water pollution control agencies ards by each such source, in addition to ade- which have independent legal counsel), or from quate notice to the permitting agency of (A) the chief legal officer in the case of an inter- new introductions into such works of pollutants state agency, that the laws of such State, or the from any source which would be a new source as interstate compact, as the case may be, provide defined in section 1316 of this title if such source adequate authority to carry out the described were discharging pollutants, (B) new introduc- program. The Administrator shall approve each tions of pollutants into such works from a submitted program unless he determines that source which would be subject to section 1311 of adequate authority does not exist: this title if it were discharging such pollutants, (1) To issue permits which— or (C) a substantial change in volume or char- (A) apply, and insure compliance with, any acter of pollutants being introduced into such applicable requirements of sections 1311, 1312, works by a source introducing pollutants into 1316, 1317, and 1343 of this title; (B) are for fixed terms not exceeding five such works at the time of issuance of the per- years; and mit. Such notice shall include information on (C) can be terminated or modified for cause the quality and quantity of effluent to be intro- including, but not limited to, the following: duced into such treatment works and any antici- (i) violation of any condition of the per- pated impact of such change in the quantity or mit; quality of effluent to be discharged from such (ii) obtaining a permit by misrepresenta- publicly owned treatment works; and tion, or failure to disclose fully all relevant (9) To insure that any industrial user of any facts; publicly owned treatment works will comply (iii) change in any condition that requires with sections 1284(b), 1317, and 1318 of this title. either a temporary or permanent reduction (c) Suspension of Federal program upon submis- or elimination of the permitted discharge; sion of State program; withdrawal of ap- (D) control the disposal of pollutants into proval of State program; return of State pro- wells; gram to Administrator (2)(A) To issue permits which apply, and in- (1) Not later than ninety days after the date sure compliance with, all applicable require- on which a State has submitted a program (or ments of section 1318 of this title; or revision thereof) pursuant to subsection (b) of (B) To inspect, monitor, enter, and require re- this section, the Administrator shall suspend ports to at least the same extent as required in the issuance of permits under subsection (a) of section 1318 of this title; this section as to those discharges subject to (3) To insure that the public, and any other such program unless he determines that the State the waters of which may be affected, re- State permit program does not meet the re- ceive notice of each application for a permit and quirements of subsection (b) of this section or to provide an opportunity for public hearing be- does not conform to the guidelines issued under fore a ruling on each such application; section 1314(i)(2) of this title. If the Adminis- (4) To insure that the Administrator receives trator so determines, he shall notify the State notice of each application (including a copy of any revisions or modifications necessary to thereof) for a permit; conform to such requirements or guidelines. Page 469 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1342

(2) Any State permit program under this sec- (e) Waiver of notification requirement tion shall at all times be in accordance with this In accordance with guidelines promulgated section and guidelines promulgated pursuant to pursuant to subsection (i)(2) of section 1314 of section 1314(i)(2) of this title. this title, the Administrator is authorized to (3) Whenever the Administrator determines waive the requirements of subsection (d) of this after public hearing that a State is not admin- section at the time he approves a program pur- istering a program approved under this section suant to subsection (b) of this section for any in accordance with requirements of this section, category (including any class, type, or size with- he shall so notify the State and, if appropriate in such category) of point sources within the corrective action is not taken within a reason- State submitting such program. able time, not to exceed ninety days, the Admin- istrator shall withdraw approval of such pro- (f) Point source categories gram. The Administrator shall not withdraw ap- The Administrator shall promulgate regula- proval of any such program unless he shall first tions establishing categories of point sources have notified the State, and made public, in which he determines shall not be subject to the writing, the reasons for such withdrawal. requirements of subsection (d) of this section in (4) LIMITATIONS ON PARTIAL PERMIT PROGRAM any State with a program approved pursuant to RETURNS AND WITHDRAWALS.—A State may re- subsection (b) of this section. The Administrator turn to the Administrator administration, and may distinguish among classes, types, and sizes the Administrator may withdraw under para- within any category of point sources. graph (3) of this subsection approval, of— (g) Other regulations for safe transportation, (A) a State partial permit program approved handling, carriage, storage, and stowage of under subsection (n)(3) of this section only if pollutants the entire permit program being administered Any permit issued under this section for the by the State department or agency at the time discharge of pollutants into the navigable wa- is returned or withdrawn; and ters from a vessel or other floating craft shall be (B) a State partial permit program approved subject to any applicable regulations promul- under subsection (n)(4) of this section only if gated by the Secretary of the department in an entire phased component of the permit pro- which the Coast Guard is operating, establishing gram being administered by the State at the specifications for safe transportation, handling, time is returned or withdrawn. carriage, storage, and stowage of pollutants. (d) Notification of Administrator (h) Violation of permit conditions; restriction or (1) Each State shall transmit to the Adminis- prohibition upon introduction of pollutant trator a copy of each permit application re- by source not previously utilizing treatment ceived by such State and provide notice to the works Administrator of every action related to the In the event any condition of a permit for dis- consideration of such permit application, includ- charges from a treatment works (as defined in ing each permit proposed to be issued by such section 1292 of this title) which is publicly State. owned is violated, a State with a program ap- (2) No permit shall issue (A) if the Adminis- proved under subsection (b) of this section or trator within ninety days of the date of his noti- the Administrator, where no State program is fication under subsection (b)(5) of this section approved or where the Administrator deter- objects in writing to the issuance of such per- mines pursuant to section 1319(a) of this title mit, or (B) if the Administrator within ninety that a State with an approved program has not days of the date of transmittal of the proposed commenced appropriate enforcement action permit by the State objects in writing to the is- with respect to such permit, may proceed in a suance of such permit as being outside the court of competent jurisdiction to restrict or guidelines and requirements of this chapter. prohibit the introduction of any pollutant into Whenever the Administrator objects to the issu- such treatment works by a source not utilizing ance of a permit under this paragraph such writ- such treatment works prior to the finding that ten objection shall contain a statement of the such condition was violated. reasons for such objection and the effluent limi- tations and conditions which such permit would (i) Federal enforcement not limited include if it were issued by the Administrator. Nothing in this section shall be construed to (3) The Administrator may, as to any permit limit the authority of the Administrator to take application, waive paragraph (2) of this sub- action pursuant to section 1319 of this title. section. (j) Public information (4) In any case where, after December 27, 1977, A copy of each permit application and each the Administrator, pursuant to paragraph (2) of permit issued under this section shall be avail- this subsection, objects to the issuance of a per- able to the public. Such permit application or mit, on request of the State, a public hearing permit, or portion thereof, shall further be shall be held by the Administrator on such ob- available on request for the purpose of reproduc- jection. If the State does not resubmit such per- tion. mit revised to meet such objection within 30 days after completion of the hearing, or, if no (k) Compliance with permits hearing is requested within 90 days after the Compliance with a permit issued pursuant to date of such objection, the Administrator may this section shall be deemed compliance, for pur- issue the permit pursuant to subsection (a) of poses of sections 1319 and 1365 of this title, with this section for such source in accordance with sections 1311, 1312, 1316, 1317, and 1343 of this the guidelines and requirements of this chapter. title, except any standard imposed under section § 1342 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 470

1317 of this title for a toxic pollutant injurious relieve such treatment works of its obligations to human health. Until December 31, 1974, in any to meet requirements established under this case where a permit for discharge has been ap- chapter, or otherwise preclude such works from plied for pursuant to this section, but final ad- pursuing whatever feasible options are available ministrative disposition of such application has to meet its responsibility to comply with its not been made, such discharge shall not be a permit under this section. violation of (1) section 1311, 1316, or 1342 of this (n) Partial permit program title, or (2) section 407 of this title, unless the Administrator or other plaintiff proves that (1) State submission final administrative disposition of such applica- The Governor of a State may submit under tion has not been made because of the failure of subsection (b) of this section a permit program the applicant to furnish information reasonably for a portion of the discharges into the navi- required or requested in order to process the ap- gable waters in such State. plication. For the 180-day period beginning on (2) Minimum coverage October 18, 1972, in the case of any point source A partial permit program under this sub- discharging any pollutant or combination of pol- section shall cover, at a minimum, adminis- lutants immediately prior to such date which tration of a major category of the discharges source is not subject to section 407 of this title, into the navigable waters of the State or a the discharge by such source shall not be a vio- major component of the permit program re- lation of this chapter if such a source applies for quired by subsection (b) of this section. a permit for discharge pursuant to this section within such 180-day period. (3) Approval of major category partial permit (l) Limitation on permit requirement programs (1) Agricultural return flows The Administrator may approve a partial permit program covering administration of a The Administrator shall not require a per- major category of discharges under this sub- mit under this section for discharges com- section if— posed entirely of return flows from irrigated (A) such program represents a complete agriculture, nor shall the Administrator di- permit program and covers all of the dis- rectly or indirectly, require any State to re- charges under the jurisdiction of a depart- quire such a permit. ment or agency of the State; and (2) Stormwater runoff from oil, gas, and min- (B) the Administrator determines that the ing operations partial program represents a significant and The Administrator shall not require a per- identifiable part of the State program re- mit under this section, nor shall the Adminis- quired by subsection (b) of this section. trator directly or indirectly require any State (4) Approval of major component partial per- to require a permit, for discharges of storm- mit programs water runoff from mining operations or oil and gas exploration, production, processing, or The Administrator may approve under this treatment operations or transmission facili- subsection a partial and phased permit pro- ties, composed entirely of flows which are gram covering administration of a major com- from conveyances or systems of conveyances ponent (including discharge categories) of a (including but not limited to pipes, conduits, State permit program required by subsection ditches, and channels) used for collecting and (b) of this section if— conveying precipitation runoff and which are (A) the Administrator determines that the not contaminated by contact with, or do not partial program represents a significant and come into contact with, any overburden, raw identifiable part of the State program re- material, intermediate products, finished quired by subsection (b) of this section; and product, byproduct, or waste products located (B) the State submits, and the Adminis- on the site of such operations. trator approves, a plan for the State to as- sume administration by phases of the re- (m) Additional pretreatment of conventional pol- mainder of the State program required by lutants not required subsection (b) of this section by a specified To the extent a treatment works (as defined in date not more than 5 years after submission section 1292 of this title) which is publicly of the partial program under this subsection owned is not meeting the requirements of a per- and agrees to make all reasonable efforts to mit issued under this section for such treatment assume such administration by such date. works as a result of inadequate design or oper- (o) Anti-backsliding ation of such treatment works, the Adminis- trator, in issuing a permit under this section, (1) General prohibition shall not require pretreatment by a person in- In the case of effluent limitations estab- troducing conventional pollutants identified lished on the basis of subsection (a)(1)(B) of pursuant to section 1314(a)(4) of this title into this section, a permit may not be renewed, re- such treatment works other than pretreatment issued, or modified on the basis of effluent required to assure compliance with pre- guidelines promulgated under section 1314(b) treatment standards under subsection (b)(8) of of this title subsequent to the original issu- this section and section 1317(b)(1) of this title. ance of such permit, to contain effluent limi- Nothing in this subsection shall affect the Ad- tations which are less stringent than the com- ministrator’s authority under sections 1317 and parable effluent limitations in the previous 1319 of this title, affect State and local author- permit. In the case of effluent limitations es- ity under sections 1317(b)(4) and 1370 of this title, tablished on the basis of section 1311(b)(1)(C) Page 471 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1342

or section 1313(d) or (e) of this title, a permit tain a less stringent effluent limitation if the may not be renewed, reissued, or modified to implementation of such limitation would re- contain effluent limitations which are less sult in a violation of a water quality standard stringent than the comparable effluent limita- under section 1313 of this title applicable to tions in the previous permit except in compli- such waters. ance with section 1313(d)(4) of this title. (p) Municipal and industrial stormwater dis- (2) Exceptions charges A permit with respect to which paragraph (1) (1) General rule applies may be renewed, reissued, or modified Prior to October 1, 1994, the Administrator to contain a less stringent effluent limitation or the State (in the case of a permit program applicable to a pollutant if— approved under this section) shall not require (A) material and substantial alterations or a permit under this section for discharges additions to the permitted facility occurred composed entirely of stormwater. after permit issuance which justify the ap- (2) Exceptions plication of a less stringent effluent limita- tion; Paragraph (1) shall not apply with respect to (B)(i) information is available which was the following stormwater discharges: not available at the time of permit issuance (A) A discharge with respect to which a (other than revised regulations, guidance, or permit has been issued under this section be- test methods) and which would have justi- fore February 4, 1987. fied the application of a less stringent efflu- (B) A discharge associated with industrial ent limitation at the time of permit issu- activity. ance; or (C) A discharge from a municipal separate (ii) the Administrator determines that storm sewer system serving a population of technical mistakes or mistaken interpreta- 250,000 or more. tions of law were made in issuing the permit (D) A discharge from a municipal separate under subsection (a)(1)(B) of this section; storm sewer system serving a population of (C) a less stringent effluent limitation is 100,000 or more but less than 250,000. necessary because of events over which the (E) A discharge for which the Adminis- permittee has no control and for which there trator or the State, as the case may be, de- is no reasonably available remedy; termines that the stormwater discharge con- (D) the permittee has received a permit tributes to a violation of a water quality modification under section 1311(c), 1311(g), standard or is a significant contributor of 1311(h), 1311(i), 1311(k), 1311(n), or 1326(a) of pollutants to waters of the United States. this title; or (3) Permit requirements (E) the permittee has installed the treat- (A) Industrial discharges ment facilities required to meet the effluent limitations in the previous permit and has Permits for discharges associated with in- properly operated and maintained the facili- dustrial activity shall meet all applicable ties but has nevertheless been unable to provisions of this section and section 1311 of achieve the previous effluent limitations, in this title. which case the limitations in the reviewed, (B) Municipal discharge reissued, or modified permit may reflect the Permits for discharges from municipal level of pollutant control actually achieved storm sewers— (but shall not be less stringent than required (i) may be issued on a system- or juris- by effluent guidelines in effect at the time of diction-wide basis; permit renewal, reissuance, or modification). (ii) shall include a requirement to effec- Subparagraph (B) shall not apply to any re- tively prohibit non-stormwater discharges vised waste load allocations or any alternative into the storm sewers; and grounds for translating water quality stand- (iii) shall require controls to reduce the ards into effluent limitations, except where discharge of pollutants to the maximum the cumulative effect of such revised alloca- extent practicable, including management tions results in a decrease in the amount of practices, control techniques and system, pollutants discharged into the concerned wa- design and engineering methods, and such ters, and such revised allocations are not the other provisions as the Administrator or result of a discharger eliminating or substan- the State determines appropriate for the tially reducing its discharge of pollutants due control of such pollutants. to complying with the requirements of this (4) Permit application requirements chapter or for reasons otherwise unrelated to (A) Industrial and large municipal dis- water quality. charges (3) Limitations Not later than 2 years after February 4, In no event may a permit with respect to 1987, the Administrator shall establish regu- which paragraph (1) applies be renewed, re- lations setting forth the permit application issued, or modified to contain an effluent limi- requirements for stormwater discharges de- tation which is less stringent than required by scribed in paragraphs (2)(B) and (2)(C). Appli- effluent guidelines in effect at the time the cations for permits for such discharges shall permit is renewed, reissued, or modified. In no be filed no later than 3 years after February event may such a permit to discharge into wa- 4, 1987. Not later than 4 years after February ters be renewed, reissued, or modified to con- 4, 1987, the Administrator or the State, as § 1342 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 472

the case may be, shall issue or deny each the Administrator on April 11, 1994 (in this such permit. Any such permit shall provide subsection referred to as the ‘‘CSO control pol- for compliance as expeditiously as prac- icy’’). ticable, but in no event later than 3 years (2) Water quality and designated use review after the date of issuance of such permit. guidance (B) Other municipal discharges Not later than July 31, 2001, and after pro- Not later than 4 years after February 4, viding notice and opportunity for public com- 1987, the Administrator shall establish regu- ment, the Administrator shall issue guidance lations setting forth the permit application to facilitate the conduct of water quality and requirements for stormwater discharges de- designated use reviews for municipal combined scribed in paragraph (2)(D). Applications for sewer overflow receiving waters. permits for such discharges shall be filed no (3) Report later than 5 years after February 4, 1987. Not Not later than September 1, 2001, the Admin- later than 6 years after February 4, 1987, the istrator shall transmit to Congress a report on Administrator or the State, as the case may the progress made by the Environmental Pro- be, shall issue or deny each such permit. Any tection Agency, States, and municipalities in such permit shall provide for compliance as implementing and enforcing the CSO control expeditiously as practicable, but in no event policy. later than 3 years after the date of issuance (r) Discharges incidental to the normal operation of such permit. of recreational vessels (5) Studies No permit shall be required under this chapter The Administrator, in consultation with the by the Administrator (or a State, in the case of States, shall conduct a study for the purposes a permit program approved under subsection (b)) of— for the discharge of any graywater, bilge water, (A) identifying those stormwater dis- cooling water, weather deck runoff, oil water charges or classes of stormwater discharges separator effluent, or effluent from properly for which permits are not required pursuant functioning marine engines, or any other dis- to paragraphs (1) and (2) of this subsection; charge that is incidental to the normal oper- (B) determining, to the maximum extent ation of a vessel, if the discharge is from a rec- practicable, the nature and extent of pollut- reational vessel. ants in such discharges; and (C) establishing procedures and methods to (June 30, 1948, ch. 758, title IV, § 402, as added control stormwater discharges to the extent Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 880; necessary to mitigate impacts on water amended Pub. L. 95–217, §§ 33(c), 50, 54(c)(1), 65, 66, quality. Dec. 27, 1977, 91 Stat. 1577, 1588, 1591, 1599, 1600; Pub. L. 100–4, title IV, §§ 401–404(a), 404(c), for- Not later than October 1, 1988, the Adminis- merly 404(d), 405, Feb. 4, 1987, 101 Stat. 65–67, 69, trator shall submit to Congress a report on the renumbered § 404(c), Pub. L. 104–66, title II, results of the study described in subpara- § 2021(e)(2), Dec. 21, 1995, 109 Stat. 727; Pub. L. graphs (A) and (B). Not later than October 1, 102–580, title III, § 364, Oct. 31, 1992, 106 Stat. 4862; 1989, the Administrator shall submit to Con- Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 112(a)], gress a report on the results of the study de- Dec. 21, 2000, 114 Stat. 2763, 2763A–224; Pub. L. scribed in subparagraph (C). 110–288, § 2, July 29, 2008, 122 Stat. 2650.) (6) Regulations AMENDMENTS Not later than October 1, 1993, the Adminis- 2008—Subsec. (r). Pub. L. 110–288 added subsec. (r). trator, in consultation with State and local of- 2000—Subsec. (q). Pub. L. 106–554 added subsec. (q). ficials, shall issue regulations (based on the 1992—Subsec. (p)(1), (6). Pub. L. 102–580 substituted results of the studies conducted under para- ‘‘October 1, 1994’’ for ‘‘October 1, 1992’’ in par. (1) and graph (5)) which designate stormwater dis- ‘‘October 1, 1993’’ for ‘‘October 1, 1992’’ in par. (6). charges, other than those discharges described 1987—Subsec. (a)(1). Pub. L. 100–4, § 404(c), inserted cl. (A) and (B) designations. in paragraph (2), to be regulated to protect Subsec. (c)(1). Pub. L. 100–4, § 403(b)(2), substituted ‘‘as water quality and shall establish a comprehen- to those discharges’’ for ‘‘as to those navigable wa- sive program to regulate such designated ters’’. sources. The program shall, at a minimum, (A) Subsec. (c)(4). Pub. L. 100–4, § 403(b)(1), added par. (4). establish priorities, (B) establish requirements Subsec. (l). Pub. L. 100–4, § 401, inserted ‘‘Limitation for State stormwater management programs, on permit requirement’’ as subsec. heading designated and (C) establish expeditious deadlines. The existing provisions as par. (1) and inserted par. heading, added par. (2), and aligned pars. (1) and (2). program may include performance standards, Subsecs. (m) to (p). Pub. L. 100–4, §§ 402, 403(a), 404(a), guidelines, guidance, and management prac- 405, added subsecs. (m) to (p). tices and treatment requirements, as appro- 1977—Subsec. (a)(5). Pub. L. 95–217, § 50, substituted priate. ‘‘section 1314(i)(2)’’ for ‘‘section 1314(h)(2)’’. Subsec. (b). Pub. L. 95–217, § 50, substituted in provi- (q) Combined sewer overflows sions preceding par. (1) ‘‘subsection (i)(2) of section (1) Requirement for permits, orders, and de- 1314’’ for ‘‘subsection (h)(2) of section 1314’’. crees Subsec. (b)(8). Pub. L. 95–217, § 54(c)(1), inserted ref- Each permit, order, or decree issued pursu- erence to identification in terms of character and vol- ume of pollutants of any significant source introducing ant to this chapter after December 21, 2000, for pollutants subject to pretreatment standards under a discharge from a municipal combined storm section 1317(b) of this title into treatment works and and sanitary sewer shall conform to the Com- programs to assure compliance with pretreatment bined Sewer Overflow Control Policy signed by standards by each source. Page 473 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1342

Subsec. (c)(1), (2). Pub. L. 95–217, § 50, substituted of the enactment of this Act [July 31, 2008] and ending ‘‘section 1314(i)(2)’’ for ‘‘section 1314(h)(2)’’. on December 18, 2013, the Administrator, or a State in Subsec. (d)(2). Pub. L. 95–217, § 65(b), inserted provi- the case of a permit program approved under section sion requiring that, whenever the Administrator ob- 402 of the Federal Water Pollution Control Act (33 jects to the issuance of a permit under subsec. (d)(2) of U.S.C. 1342), shall not require a permit under that sec- this section, the written objection contain a statement tion for a covered vessel for— of the reasons for the objection and the effluent limita- ‘‘(1) any discharge of effluent from properly func- tions and conditions which the permit would include if tioning marine engines; it were issued by the Administrator. ‘‘(2) any discharge of laundry, shower, and galley Subsec. (d)(4). Pub. L. 95–217, § 65(a), added par. (4). sink wastes; or Subsec. (e). Pub. L. 95–217, § 50, substituted ‘‘sub- ‘‘(3) any other discharge incidental to the normal section (i)(2) of section 1314’’ for ‘‘subsection (h)(2) of operation of a covered vessel. section 1314’’. ‘‘(b) EXCEPTIONS.—Subsection (a) shall not apply with Subsec. (h). Pub. L. 95–217, § 66, substituted ‘‘where no respect to— State program is approved or where the Administrator ‘‘(1) rubbish, trash, garbage, or other such mate- determines pursuant to section 1319(a) of this title that rials discharged overboard; a State with an approved program has not commenced ‘‘(2) other discharges when the vessel is operating appropriate enforcement action with respect to such in a capacity other than as a means of transpor- permit,’’ for ‘‘where no State program is approved,’’. tation, such as when— Subsec. (l). Pub. L. 95–217, § 33(c), added subsec. (l). ‘‘(A) used as an energy or mining facility; TRANSFER OF FUNCTIONS ‘‘(B) used as a storage facility or a seafood proc- essing facility; For transfer of authorities, functions, personnel, and ‘‘(C) secured to a storage facility or a seafood assets of the Coast Guard, including the authorities processing facility; or and functions of the Secretary of Transportation relat- ‘‘(D) secured to the bed of the ocean, the contig- ing thereto, to the Department of Homeland Security, uous zone, or waters of the United States for the and for treatment of related references, see sections purpose of mineral or oil exploration or develop- 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- ment; rity, and the Department of Homeland Security Reor- ‘‘(3) any discharge of ballast water; or ganization Plan of November 25, 2002, as modified, set ‘‘(4) any discharge in a case in which the Adminis- out as a note under section 542 of Title 6. trator or State, as appropriate, determines that the Enforcement functions of Administrator or other offi- discharge— cial of the Environmental Protection Agency under ‘‘(A) contributes to a violation of a water quality this section relating to compliance with national pol- standard; or lutant discharge elimination system permits with re- ‘‘(B) poses an unacceptable risk to human health spect to pre-construction, construction, and initial op- or the environment.’’ eration of transportation system for Canadian and Alaskan natural gas were transferred to the Federal In- STORMWATER PERMIT REQUIREMENTS spector, Office of Federal Inspector for the Alaska Nat- Pub. L. 102–240, title I, § 1068, Dec. 18, 1991, 105 Stat. ural Gas Transportation System, until the first anni- 2007, provided that: versary of the date of initial operation of the Alaska ‘‘(a) GENERAL RULE.—Notwithstanding the require- Natural Gas Transportation System, see Reorg. Plan ments of sections 402(p)(2)(B), (C), and (D) of the Fed- No. 1 of 1979, §§ 102(a), 203(a), 44 F.R. 33663, 33666, 93 Stat. eral Water Pollution Control Act [33 U.S.C. 1373, 1376, effective July 1, 1979, set out in the Appendix 1342(p)(2)(B), (C), (D)], permit application deadlines for to Title 5, Government Organization and Employees. stormwater discharges associated with industrial ac- Office of Federal Inspector for the Alaska Natural Gas tivities from facilities that are owned or operated by a Transportation System abolished and functions and au- municipality shall be established by the Administrator thority vested in Inspector transferred to Secretary of of the Environmental Protection Agency (hereinafter Energy by section 3012(b) of Pub. L. 102–486, set out as in this section referred to as the ‘Administrator’) pur- an Abolition of Office of Federal Inspector note under suant to the requirements of this section. section 719e of Title 15, Commerce and Trade. Func- ‘‘(b) PERMIT APPLICATIONS.— tions and authority vested in Secretary of Energy sub- ‘‘(1) INDIVIDUAL APPLICATIONS.—The Administrator sequently transferred to Federal Coordinator for Alas- shall require individual permit applications for dis- ka Natural Gas Transportation Projects by section charges described in subsection (a) on or before Octo- 720d(f) of Title 15. ber 1, 1992; except that any municipality that has par- PERMIT REQUIREMENTS FOR DISCHARGES FROM CERTAIN ticipated in a timely part I group application for an VESSELS industrial activity discharging stormwater that is de- nied such participation in a group application or for Pub. L. 110–299, §§ 1, 2, July 31, 2008, 122 Stat. 2995, as which a group application is denied shall not be re- amended by Pub. L. 111–215, § 1, July 30, 2010, 124 Stat. quired to submit an individual application until the 2347, provided that: 180th day following the date on which the denial is ‘‘SECTION 1. DEFINITIONS. made. ‘‘In this Act: ‘‘(2) GROUP APPLICATIONS.—With respect to group ‘‘(1) ADMINISTRATOR.—The term ‘Administrator’ applications for permits for discharges described in means the Administrator of the Environmental Pro- subsection (a), the Administrator shall require— tection Agency. ‘‘(A) part I applications on or before September ‘‘(2) COVERED VESSEL.—The term ‘covered vessel’ 30, 1991, except that any municipality with a popu- means a vessel that is— lation of less than 250,000 shall not be required to ‘‘(A) less than 79 feet in length; or submit a part I application before May 18, 1992; and ‘‘(B) a fishing vessel (as defined in section 2101 of ‘‘(B) part II applications on or before October 1, title 46, United States Code), regardless of the 1992, except that any municipality with a popu- length of the vessel. lation of less than 250,000 shall not be required to ‘‘(3) OTHER TERMS.—The terms ‘contiguous zone’, submit a part II application before May 17, 1993. ‘discharge’, ‘ocean’, and ‘State’ have the meanings ‘‘(c) MUNICIPALITIES WITH LESS THAN 100,000 POPU- given the terms in section 502 of the Federal Water LATION.—The Administrator shall not require any mu- Pollution Control Act (33 U.S.C. 1362). nicipality with a population of less than 100,000 to ‘‘SEC. 2. DISCHARGES INCIDENTAL TO NORMAL OP- apply for or obtain a permit for any stormwater dis- ERATION OF VESSELS. charge associated with an industrial activity other ‘‘(a) NO PERMIT REQUIREMENT.—Except as provided in than an airport, powerplant, or uncontrolled sanitary subsection (b), during the period beginning on the date landfill owned or operated by such municipality before § 1343 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 474

October 1, 1992, unless such permit is required by sec- 302, 306, 307, 308, and 403 of such Act [33 U.S.C. 1311, 1312, tion 402(p)(2)(A) or (E) of the Federal Water Pollution 1316, 1317, 1318, and 1343], a separate application for a Control Act [33 U.S.C. 1342(p)(2)(A), (E)]. permit under section 402 of such Act shall not there- ‘‘(d) UNCONTROLLED SANITARY LANDFILL DEFINED.— after be required. In any case where the Administrator For the purposes of this section, the term ‘uncontrolled demonstrates, after an opportunity for a hearing, that sanitary landfill’ means a landfill or open dump, the terms of a permit issued on or before October 22, whether in operation or closed, that does not meet the 1985, under section 404 of such Act do not satisfy the ap- requirements for run-on and run-off controls estab- plicable requirements of sections 301, 302, 306, 307, 308, lished pursuant to subtitle D of the Solid Waste Dis- and 403 of such Act, modifications to the existing per- posal Act [42 U.S.C. 6941 et seq.]. mit under section 404 of such Act to incorporate such ‘‘(e) LIMITATION ON STATUTORY CONSTRUCTION.—Noth- applicable requirements shall be issued by the Adminis- ing in this section shall be construed to affect any ap- trator as an alternative to issuance of a separate new plication or permit requirement, including any dead- permit under section 402 of such Act. line, to apply for or obtain a permit for stormwater dis- ‘‘(c) LOG TRANSFER FACILITY DEFINED.—For the pur- charges subject to section 402(p)(2)(A) or (E) of the Fed- poses of this section, the term ‘log transfer facility’ eral Water Pollution Control Act [33 U.S.C. means a facility which is constructed in whole or in 1342(p)(2)(A), (E)]. part in waters of the United States and which is uti- ‘‘(f) REGULATIONS.—The Administrator shall issue lized for the purpose of transferring commercially har- final regulations with respect to general permits for vested logs to or from a vessel or log raft, including the stormwater discharges associated with industrial activ- formation of a log raft.’’ ity on or before February 1, 1992.’’ ALLOWABLE DELAY IN MODIFYING EXISTING APPROVED STATE PERMIT PROGRAMS TO CONFORM TO 1977 PHOSPHATE FERTILIZER EFFLUENT LIMITATION AMENDMENT Section 306(c) of Pub. L. 100–4 provided that: Section 54(c)(2) of Pub. L. 95–217 provided that any ‘‘(1) ISSUANCE OF PERMIT.—As soon as possible after State permit program approved under this section be- the date of the enactment of this Act [Feb. 4, 1987], but fore Dec. 27, 1977, which required modification to con- not later than 180 days after such date of enactment, form to the amendment made by section 54(c)(1) of Pub. the Administrator shall issue permits under section L. 95–217, which amended subsec. (b)(8) of this section, 402(a)(1)(B) of the Federal Water Pollution Control Act not be required to be modified before the end of the one [33 U.S.C. 1342(a)(1)(B)] with respect to facilities— year period which began on Dec. 27, 1977, unless in order ‘‘(A) which were under construction on or before to make the required modification a State must amend April 8, 1974, and or enact a law in which case such modification not be ‘‘(B) for which the Administrator is proposing to re- required for such State before the end of the two year vise the applicability of the effluent limitation estab- period which began on Dec. 27, 1977. lished under section 301(b) of such Act [33 U.S.C. 1311(b)] for phosphate subcategory of the fertilizer § 1343. Ocean discharge criteria manufacturing point source category to exclude such facilities. (a) Issuance of permits ‘‘(2) LIMITATIONS ON STATUTORY CONSTRUCTION.—Noth- No permit under section 1342 of this title for a ing in this section [amending section 1311 of this title discharge into the territorial sea, the waters of and enacting this note] shall be construed— the contiguous zone, or the oceans shall be is- ‘‘(A) to require the Administrator to permit the dis- charge of gypsum or gypsum waste into the navigable sued, after promulgation of guidelines estab- waters, lished under subsection (c) of this section, ex- ‘‘(B) to affect the procedures and standards applica- cept in compliance with such guidelines. Prior ble to the Administrator in issuing permits under to the promulgation of such guidelines, a permit section 402(a)(1)(B) of the Federal Water Pollution may be issued under such section 1342 of this Control Act [33 U.S.C. 1342(a)(1)(B)], and title if the Administrator determines it to be in ‘‘(C) to affect the authority of any State to deny or the public interest. condition certification under section 401 of such Act [33 U.S.C. 1341] with respect to the issuance of per- (b) Waiver mits under section 402(a)(1)(B) of such Act.’’ The requirements of subsection (d) of section 1342 of this title may not be waived in the case LOG TRANSFER FACILITIES of permits for discharges into the territorial sea. Section 407 of Pub. L. 100–4 provided that: (c) Guidelines for determining degradation of ‘‘(a) AGREEMENT.—The Administrator and Secretary of the Army shall enter into an agreement regarding waters coordination of permitting for log transfer facilities to (1) The Administrator shall, within one hun- designate a lead agency and to process permits required dred and eighty days after October 18, 1972 (and under sections 402 and 404 of the Federal Water Pollu- from time to time thereafter), promulgate tion Control Act [33 U.S.C. 1342, 1344], where both such guidelines for determining the degradation of sections apply, for discharges associated with the con- the waters of the territorial seas, the contiguous struction and operation of log transfer facilities. The Administrator and Secretary are authorized to act in zone, and the oceans, which shall include: accordance with the terms of such agreement to assure (A) the effect of disposal of pollutants on that, to the maximum extent practicable, duplication, human health or welfare, including but not needless paperwork and delay in the issuance of per- limited to plankton, fish, shellfish, wildlife, mits, and inequitable enforcement between and among shorelines, and beaches; facilities in different States, shall be eliminated. (B) the effect of disposal of pollutants on ‘‘(b) APPLICATIONS AND PERMITS BEFORE OCTOBER 22, marine life including the transfer, concentra- 1985.—Where both of sections 402 and 404 of the Federal tion, and dispersal of pollutants or their by- Water Pollution Control Act [33 U.S.C. 1342, 1344] apply, products through biological, physical, and log transfer facilities which have received a permit chemical processes; changes in marine eco- under section 404 of such Act before October 22, 1985, shall not be required to submit a new application for a system diversity, productivity, and stability; permit under section 402 of such Act. If the Adminis- and species and community population trator determines that the terms of a permit issued on changes; or before October 22, 1985, under section 404 of such Act (C) the effect of disposal, of pollutants on es- satisfies the applicable requirements of sections 301, thetic, recreation, and economic values; § 1341 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 466

‘‘(C) encourage the preparation of management such license or permit and requests a public plans for estuaries of national significance; and hearing on such objection, the licensing or per- ‘‘(D) enhance the coordination of estuarine re- mitting agency shall hold such a hearing. The search.’’ Administrator shall at such hearing submit his SUBCHAPTER IV—PERMITS AND LICENSES evaluation and recommendations with respect to any such objection to the licensing or permit- § 1341. Certification ting agency. Such agency, based upon the rec- (a) Compliance with applicable requirements; ommendations of such State, the Administrator, application; procedures; license suspension and upon any additional evidence, if any, pre- sented to the agency at the hearing, shall condi- (1) Any applicant for a Federal license or per- tion such license or permit in such manner as mit to conduct any activity including, but not may be necessary to insure compliance with ap- limited to, the construction or operation of fa- plicable water quality requirements. If the im- cilities, which may result in any discharge into position of conditions cannot insure such com- the navigable waters, shall provide the licensing pliance such agency shall not issue such license or permitting agency a certification from the or permit. State in which the discharge originates or will (3) The certification obtained pursuant to originate, or, if appropriate, from the interstate paragraph (1) of this subsection with respect to water pollution control agency having jurisdic- the construction of any facility shall fulfill the tion over the navigable waters at the point requirements of this subsection with respect to where the discharge originates or will originate, certification in connection with any other Fed- that any such discharge will comply with the eral license or permit required for the operation applicable provisions of sections 1311, 1312, 1313, of such facility unless, after notice to the cer- 1316, and 1317 of this title. In the case of any tifying State, agency, or Administrator, as the such activity for which there is not an applica- case may be, which shall be given by the Federal ble effluent limitation or other limitation under agency to whom application is made for such op- sections 1311(b) and 1312 of this title, and there erating license or permit, the State, or if appro- is not an applicable standard under sections 1316 priate, the interstate agency or the Adminis- and 1317 of this title, the State shall so certify, trator, notifies such agency within sixty days except that any such certification shall not be after receipt of such notice that there is no deemed to satisfy section 1371(c) of this title. longer reasonable assurance that there will be Such State or interstate agency shall establish compliance with the applicable provisions of procedures for public notice in the case of all ap- sections 1311, 1312, 1313, 1316, and 1317 of this plications for certification by it and, to the ex- title because of changes since the construction tent it deems appropriate, procedures for public license or permit certification was issued in (A) hearings in connection with specific applica- the construction or operation of the facility, (B) tions. In any case where a State or interstate the characteristics of the waters into which agency has no authority to give such a certifi- such discharge is made, (C) the water quality cation, such certification shall be from the Ad- criteria applicable to such waters or (D) applica- ministrator. If the State, interstate agency, or ble effluent limitations or other requirements. Administrator, as the case may be, fails or re- This paragraph shall be inapplicable in any case fuses to act on a request for certification, within where the applicant for such operating license a reasonable period of time (which shall not ex- or permit has failed to provide the certifying ceed one year) after receipt of such request, the State, or, if appropriate, the interstate agency certification requirements of this subsection or the Administrator, with notice of any pro- shall be waived with respect to such Federal ap- posed changes in the construction or operation plication. No license or permit shall be granted of the facility with respect to which a construc- until the certification required by this section tion license or permit has been granted, which has been obtained or has been waived as pro- changes may result in violation of section 1311, vided in the preceding sentence. No license or 1312, 1313, 1316, or 1317 of this title. permit shall be granted if certification has been (4) Prior to the initial operation of any feder- denied by the State, interstate agency, or the ally licensed or permitted facility or activity Administrator, as the case may be. which may result in any discharge into the navi- (2) Upon receipt of such application and cer- gable waters and with respect to which a certifi- tification the licensing or permitting agency cation has been obtained pursuant to paragraph shall immediately notify the Administrator of (1) of this subsection, which facility or activity such application and certification. Whenever is not subject to a Federal operating license or such a discharge may affect, as determined by permit, the licensee or permittee shall provide the Administrator, the quality of the waters of an opportunity for such certifying State, or, if any other State, the Administrator within thir- appropriate, the interstate agency or the Ad- ty days of the date of notice of application for ministrator to review the manner in which the such Federal license or permit shall so notify facility or activity shall be operated or con- such other State, the licensing or permitting ducted for the purposes of assuring that applica- agency, and the applicant. If, within sixty days ble effluent limitations or other limitations or after receipt of such notification, such other other applicable water quality requirements will State determines that such discharge will affect not be violated. Upon notification by the cer- the quality of its waters so as to violate any tifying State, or if appropriate, the interstate water quality requirements in such State, and agency or the Administrator that the operation within such sixty-day period notifies the Admin- of any such federally licensed or permitted facil- istrator and the licensing or permitting agency ity or activity will violate applicable effluent in writing of its objection to the issuance of limitations or other limitations or other water Page 467 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1342 quality requirements such Federal agency may, Federal license or permit will comply with any after public hearing, suspend such license or per- applicable effluent limitations and other limita- mit. If such license or permit is suspended, it tions, under section 1311 or 1312 of this title, shall remain suspended until notification is re- standard of performance under section 1316 of ceived from the certifying State, agency, or Ad- this title, or prohibition, effluent standard, or ministrator, as the case may be, that there is pretreatment standard under section 1317 of this reasonable assurance that such facility or activ- title, and with any other appropriate require- ity will not violate the applicable provisions of ment of State law set forth in such certification, section 1311, 1312, 1313, 1316, or 1317 of this title. and shall become a condition on any Federal li- (5) Any Federal license or permit with respect cense or permit subject to the provisions of this to which a certification has been obtained under section. paragraph (1) of this subsection may be sus- (June 30, 1948, ch. 758, title IV, § 401, as added pended or revoked by the Federal agency issuing Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 877; such license or permit upon the entering of a amended Pub. L. 95–217, §§ 61(b), 64, Dec. 27, 1977, judgment under this chapter that such facility 91 Stat. 1598, 1599.) or activity has been operated in violation of the applicable provisions of section 1311, 1312, 1313, AMENDMENTS 1316, or 1317 of this title. 1977—Subsec. (a). Pub. L. 95–217 inserted reference to (6) Except with respect to a permit issued section 1313 of this title in pars. (1), (3), (4), and (5), under section 1342 of this title, in any case struck out par. (6) which provided that no Federal where actual construction of a facility has been agency be deemed an applicant for purposes of this sub- lawfully commenced prior to April 3, 1970, no section, and redesignated par. (7) as (6). certification shall be required under this sub- section for a license or permit issued after April § 1342. National pollutant discharge elimination 3, 1970, to operate such facility, except that any system such license or permit issued without certifi- (a) Permits for discharge of pollutants cation shall terminate April 3, 1973, unless prior to such termination date the person having such (1) Except as provided in sections 1328 and 1344 license or permit submits to the Federal agency of this title, the Administrator may, after op- which issued such license or permit a certifi- portunity for public hearing issue a permit for cation and otherwise meets the requirements of the discharge of any pollutant, or combination this section. of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge (b) Compliance with other provisions of law set- will meet either (A) all applicable requirements ting applicable water quality requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 Nothing in this section shall be construed to of this title, or (B) prior to the taking of nec- limit the authority of any department or agency essary implementing actions relating to all such pursuant to any other provision of law to re- requirements, such conditions as the Adminis- quire compliance with any applicable water trator determines are necessary to carry out the quality requirements. The Administrator shall, provisions of this chapter. upon the request of any Federal department or (2) The Administrator shall prescribe condi- agency, or State or interstate agency, or appli- tions for such permits to assure compliance with cant, provide, for the purpose of this section, the requirements of paragraph (1) of this sub- any relevant information on applicable effluent section, including conditions on data and infor- limitations, or other limitations, standards, reg- mation collection, reporting, and such other re- ulations, or requirements, or water quality cri- quirements as he deems appropriate. teria, and shall, when requested by any such de- (3) The permit program of the Administrator partment or agency or State or interstate agen- under paragraph (1) of this subsection, and per- cy, or applicant, comment on any methods to mits issued thereunder, shall be subject to the comply with such limitations, standards, regula- same terms, conditions, and requirements as tions, requirements, or criteria. apply to a State permit program and permits is- (c) Authority of Secretary of the Army to permit sued thereunder under subsection (b) of this sec- use of spoil disposal areas by Federal li- tion. censees or permittees (4) All permits for discharges into the navi- gable waters issued pursuant to section 407 of In order to implement the provisions of this this title shall be deemed to be permits issued section, the Secretary of the Army, acting under this subchapter, and permits issued under through the Chief of Engineers, is authorized, if this subchapter shall be deemed to be permits is- he deems it to be in the public interest, to per- sued under section 407 of this title, and shall mit the use of spoil disposal areas under his ju- continue in force and effect for their term unless risdiction by Federal licensees or permittees, revoked, modified, or suspended in accordance and to make an appropriate charge for such use. with the provisions of this chapter. Moneys received from such licensees or permit- (5) No permit for a discharge into the navi- tees shall be deposited in the Treasury as mis- gable waters shall be issued under section 407 of cellaneous receipts. this title after October 18, 1972. Each application (d) Limitations and monitoring requirements of for a permit under section 407 of this title, pend- certification ing on October 18, 1972, shall be deemed to be an Any certification provided under this section application for a permit under this section. The shall set forth any effluent limitations and Administrator shall authorize a State, which he other limitations, and monitoring requirements determines has the capability of administering a necessary to assure that any applicant for a permit program which will carry out the objec- Region I Guidance for Antidegradation Policy Implementation for High Quality Waters

March 10, 1987 All States must have antidegradation policy language consistent with 40 CFR Section 131.12 in their water quality standards, and must develop appropriate implementation procedures. This document provides guidance to the States in developing their own antidegradation policy implementation procedures. EPA will review and approve these procedures to ensure consistent application of each state's antidegradation policy. This document also serves as the regional benchmark for evaluating antidegradation policy issues related to Regional reviews of activities which could 1ower water quality. The Region recognizes that State resources are limited and recommends that States develop procedures so that the burden of proof is on the applicant.

Section 131.12 of the Water Quality standards regulation consists of three components which prohibit lowering water quality in some cases and require certain analyses to support lowering water quality in others. Component 131.12(a)(l) requires that the level of water quality necessary to protect existing instream water uses shall be maintained and protected. Existing uses are defined as those uses actually attained in the water body on or after

November 28, 1975, whether or not they are included in the water quality standards. Component 131.12(a)(3) prohibits lowering water quality in high quality waters that are classified as Outstanding National Resource Waters (ONRWs). The Federal antidegradation policy specifies that the water quality of ONRWs shall be maintained and protected. Consequently, the lowering of water quality is prohibited in ONRW's except where limited activities will result in only temporary or short term insignificant changes in water quality. ONRW's should include, but are not limited to, waters of National and State Parks and wildlife refuges, and waters of exceptional recreational or ecological significance. State implementation procedures should document waters ineligible for lower water quality. To identify ONRW's the State Water Quality Agency can obtain assistance from the State Outdoor Recreation Agency. The State Outdoor Recreation Liason Officer maintains a State Outdoor Recreational Plan in coordination with the North Atlantic Regional Office of the National Park Service (U.S. Department of Interior) under the Federal Land and Water Conservation Fund Act. Useful inventories include the list of river segments identified by the National Park Service, in cooperation with the States, as eligible for consideration under the Federal Wild, Scenic and Recreational Rivers Act. Further, several States have identified river segments worthy of protection as State Wild and Scenic Rivers. EPA can assist in this coordination. The focus of this guidance is on Sec. 131.12(a)(2), the component that requires certain analyses to support lowering water quality in some cases and, therefore, requires the greatest attention in State implementation procedures. This component requires the maintenance and protection of water quality in high quality waters unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. High quality waters are defined as having an existing water quality exceeding levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water. In allowing lower water quality, the state must assure that existing high quality uses will be protected fully.

APPLICATION The Federal antidegradation policy applies to both point and nonpoint sources of pollution. Any action involving point or nonpoint source pollution which could result in a lowering of water quality in high quality waters is subject to antidegradation implementation. Although the following guidance focuses on application of the anti- degradation policy to point sources, states should also plan to develop procedures for assessing nonpoint source activities that could lower water quality. As part of the requirement that high quality waters be maintained and protected, the Federal antidegradation policy stipulates that the States must assure that all cost-effective and reasonable best management practices for nonpoint sources are achieved. This provision makes it the State's responsibility to work towards nonpoint source control. State Nonpoint Source Assessment Reports should identify waters where additional nonpoint source activities might 1ower water quality and thus be subject to anti- degradation implementation. This information should be included in the State 305(b) Report. State Nonpoint Source Management Programs will prescribe the BMP's and management actions necessary to meet the requirements of antidegradation. Program actions that are potentially subject to antidegradation policy implemen- tation include, but are not limited to, the following: Point Sources - industrial production increase - municipal growth - new discharge or source - reallocation of abandoned load - relocation of discharge - revision of wasteload allocation Nonpoint Sources/Other - land use changes (e.g. agriculture, siliculture, mining) - highway construction - resort development - urban development - removal of Best Management Practices - Sec. 401 certifications - issuance of Sec. 402 and Sec. 404 permits - RCRA/CERCLA actions that impact water quality - Sec.208 and Sec.303 plan approvals - Resource Management Plan approval. - Land Management (e.g. forest) - hydropower development - diversions/interbasin transfers For nonpoint source activities that currently require public notification, the information contained in Task C below must be part of the public notification process. For the other activities that currently do not require public notification, the States should develop a process to ensure that public notification is provided for those activities that could lower water quality. This will ensure that the public is afforded the opportunity to comment on all activities that could 1ower water quality. It should be noted that some actions affecting NPDES permits (i.e., relaxation of existing permit limitations) may be subject to the antibacksliding rule. Antibacksliding requirements, found at 40 CFR Sec. 122.44(l) of USEPA's NPDES regulations, are separate from implementation of the antidegradation policy. Antibacksliding essentially says that limitations, standards or conditions in a reissued permit must be at least as stringent as the limitations, standards or conditions in the previous permit unless circumstances have changed significantly.

This section describes the major tasks that should be included in State anti- degradation implementation procedures to ensure that actions which could result in a lowering of water quality in high quality waters are consistent with the provisions of Section 131.12(a)(2) of the Water Quality Standards regulation. They include the following: A. Determine if the proposed action would cause a significant lowering of water quality and if lower water quality will protect the existing uses. B. Demonstrate that lower water quality is necessary to accomodate important economic or social development in the area in which the waters are located. C. Complete intergovernmental cooperation and public participation. If a state determines under Task A that the proposed action would not cause a significant lowering of water quality in a high quality water and that lower water quality will protect the existing uses fully, then completion of Task B is not required. If the proposed action would significantly lower water quality, while still protecting the existing uses, then task B involves a demonstration that allowing lower water quality is necessary to accomodate important economic or social development in the area in which the waters are located. Under no circumstances can water quality be lowered below levels necessary to fully protect the existing uses of a high quality water. Both groups of program actions require intergovermental cooperation and public participation as described in task C. Implementation of the antidegradation policy assumes that water quality standards have been appropriately set for waterbodies where water quality will be lowered. Where the standards themselves are inappropriate, it will be necessary to review and, if appropriate, revise the standards pursuant to Section 131.20 of the Water Quality Standards regulation. Where water quality improvements result in attainment of the next highest classification criteria, States must revise their standards to reflect the new classification.

In the strictest sense, any action that could lower water quality in high quality waters requires a determination that lowering water quality is necessary to accommodate important economic or social development. However, to ensure that scarce pollution control resources are used judiciously, the Region will consider that antidegradation requirements have been satisfied when it is demonstrated that there will be no signifi- cant lowering of water quality and existing uses will be protected fully. The definition of "significant" will be left up to the individual States, subject to EPA approval. The State could, for example, base the definition on direct measures such as an absolute or percent change in predicted ambient concentrations or indirect measures such as changes in primary productivity caused by nutrients or changes in diurnal dissolved oxygen fluctuations. The definition should be documented in the State's implementation procedures. It is expected that the definition would be different for different categories of substances. For example, some chemical pollutants will persist in the environment for a long time, if not indefinitely. Therefore, continued loading of these chemicals is -6-

likely to result in accumulation. The potential for accumulation to deleterious levels is evident, and is the basis for minimizing the discharge of such substances. The substance specific definitions of “significant” discussed above do not address the possibility of additive or synergistic effects. These effects must be taken into consideration to ensure that such interactions will not inadvertently result in significant toxicity in the receiving waters. The approach or approaches which the State proposes to use should be fully documented and justified in its implementation procedures. Due consideration must also be given to the possibility that repeated or multiple “insignificant” changes could cumulatively cause significant changes in water quality.

Wasteload allocation results involving simple mass balance calculations or more sophisticated mathematical modelling should be used to determine if there will be a significant lowering of water quality and if lower water quality will protect existing uses fully. The degree of model sophistication should correspond with the expected degree of water quality impact and/or with the sensitivity or resource value of the receiving water. If the results indicate that the proposed action would cause a significant lowering of water quality, while protecting the existing uses fully, then it must be demonstrated that lowering water quality is necessary to accommodate important economic or social development. The Region recognizes that some waters in each State have special resource values which should be afforded a level of protection beyond that required statewide for high quality waters, but not as stringent as far ONRW's. The States are encouraged to create an intermediate category with an appropriate level of protection. All activities that could lower water quality in these special resources, regardless of the significance of the expected water quality impact, should require a demonstration that lowering water quality is necessary to accommodate important economic or social development. Task B. The Federal antidegradation policy requires a demonstration that lowering water quality -7-

is "necessary to accommodate important economic or social development in the area in which the waters are located”.

To be eligible to lower water quality, the discharger must first demonstrate to the satisfaction of the State pollution control agency and Region 1 that lowering of water quality is necessary to accommodate: 1. new production by a new discharger; or 2. industrial production which cannot be accommodated by the current treatment facility while maintaining consistent compliance with current effluent limits even though the current facility is appropriate and is optimally maintained and operated; or 3. increased loading to a municipal wastewater treatment plant because of community growth, which cannot be accommodated by the current treatment facility while maintaining consistent compliance with current effluent limits even though the current facility is appropriate and is optimally maintained and operated; or 4. other circumstances deemed analogous to l-3. Consistent compliance with effluent limits is defined as 99 percent compliance with daily maxima, and 95 percent compliance with monthly averages. If consistent compliance can be maintained, then lower water quality is not “necessary” and is, therefore not permissible. Where a discharger claims that consistent compliance cannot be maintained, it must also be determined that the treatment facility is appropriate and is optimally operated and maintained. Inappropriate facilities or mediocre operation and maintenance are not acceptable justification for lowering water quality. For new facilities, the demonstration should include an evaluation of alternative sites. Intergovernmental cooperation should be an important part of this evaluation. After identifying any such increased production or population growth in the area in which the waters are located, the State must make a specific finding that such in- creased production or growth is necessary for important economic or social development. The Region recognizes that the definition of “important” development needs to be flexible to accommodate differences in State economic or social circumstances. The definition will be left up to the individual States and should be documented in the States implementation procedures. Development should be measured against the “baseline” economic and social status, i.e., the current state of economic and social development in the area that would be affected. Local planning agencies should be able to provide the necessary economic information. Importance of development can be demonstrated by showing, for example, expected growth in the following factors: - area employment, - direct and indirect income, and/or - the net community tax base Intergovernmental cooperation must be an essential element of any determination concerning the importance of economic or social development. Even if it is determined that lowering water quality is necessary to accommodate important economic or social development, it may not be in the public interest to do so. In some instances, the benefits associated with water quality levels that exceed

levels necessary to protect designated uses may outweigh the benefits associated with important economic or social development. State implementation procedures should provide a mechanism whereby the State pollution control agency can override an approval based on the above if there is a compelling environmental reason or public opinion to do so. Task C Public participation and intergovernmental cooperation are essential elements of antidegradation policy implementation. Potential participants must explicitly be made aware of antidegradation policy issues and the potential impact of any lowering of water quality. Where the documentation for a permit issuance/reissuance/modification does not provide adequate evidence of State antidegradation policy implementation, the Region may object to the proposed permit. Any public notice related to potential lowering of water quality should address at least the following topics: 1. statement of the state's antidegradation policy; 2. discussion of the policy's applicability to the proposed action; 3. statement concerning the significance of the expected water quality impact and the effect on existing uses. 4. statement concerning the necessity of allowing lower water quality to accommodate important economic or social development. 5. identification of other appropriate agencies which have been notified of the proposed action including, identification of those agencies which have contributed to the antidegradation policy implementation. In addition, the public notice should address, or contain explicit reference to the following topics: 1. specific identification of the chemical, physical, and biological pollutants involved and known and suspected environmental effects. 2. description of the current level of water quality; 3. description of the impact that the proposed action will have on water quality, including synergistic effects and results of toxicity tests if appropriate; 4. summary of other actions that have lowered water quality with a determination of cumulative impacts: 5. discussion of existing uses and how lower water quality will protect existing uses fully: 6. demonstration of important economic or social development in the area in which the waters are located (if appropriate). 7. determination that allowing lower water quality is "necessary* to accommodate important economic or social development (if appropriate). While formal notice of intent to authorize degradation of existing water quality is required only at the time an NPDES permit is public noticed, it is both advisable and prudent to inform interested and affected parties as early in the process as possible. Pt. 132, App. E 40 CFR Ch. I (7–1–11 Edition)

H. U.S. EPA. 1988. Recommendations for, Tables to Appendix D to Part 132 and documentation of, biological values for use in risk assessment. NTIS–PB88–179874. TABLE D–1—TIER I GREAT LAKES WILDLIFE I. U.S. EPA. 1993. Wildlife Exposure Fac- CRITERIA tors Handbook, Volumes I and II. EPA/600/R– Criterion 93/187a and b. Substance (μg/L)

DDT & Metabolites ...... 1.1E–5 Mercury ...... 1.3E–3 PCBs (total) ...... 7.4E–5 2,3,7,8-TCDD ...... 3.1E–9

TABLE D–2—EXPOSURE PARAMETERS FOR THE FIVE REPRESENTATIVE SPECIES IDENTIFIED FOR PROTECTION

Water in- Species (units) Adult body gestion rate Food ingestion rate of prey in Trophic level of prey (percent of diet) weight (kg) (L/day) each trophic level (kg/day)

Mink ...... 0 .80 0.081 TL3: 0.159; Other: 0.0177 ...... TL3: 90; Other: 10. Otter ...... 7 .4 0.600 TL3: 0.977; TL4: 0.244 ...... TL3: 80; TL4: 20. Kingfisher ...... 0 .15 0.017 TL3: 0.0672 ...... TL3: 100. Herring gull ...... 1 .1 0.063 TL3: 0.192; TL4: 0.0480 ...... Fish: 90—TL3: 80; TL4: 20. Other: 0.0267 ...... Other: 10. Bald eagle ...... 4 .6 0.160 TL3: 0.371; TL4: 0.0929 ...... Fish: 92—TL3: 80; TL4: 20. PB: 00283; Other: 0.0121 ...... Birds: 8—PB: 70; non-aquatic: 30.

NOTE: TL3=trophic level three fish; TL4=trophic level four fish; PB=piscivorous birds; Other=non-aquatic birds and mammals.

APPENDIX E TO PART 132—GREAT LAKES pliance with water quality standards. Pursu- WATER QUALITY INITIATIVE ant to this standard: A. Existing instream water uses, as defined ANTIDEGRADATION POLICY pursuant to 40 CFR 131, and the level of Great Lakes States and Tribes shall adopt water quality necessary to protect existing provisions consistent with (as protective as) uses shall be maintained and protected. appendix E to part 132. Where designated uses of the waterbody are impaired, there shall be no lowering of the The State or Tribe shall adopt an water quality with respect to the pollutant antidegradation standard applicable to all or pollutants which are causing the impair- waters of the Great Lakes System and iden- ment; tify the methods for implementing such a B. Where, for any parameter, the quality of standard. Consistent with 40 CFR 131.12, an the waters exceed levels necessary to support acceptable antidegradation standard and im- the propagation of fish, shellfish, and wild- plementation procedure are required ele- life and recreation in and on the waters, that ments of a State’s or Tribe’s water quality water shall be considered high quality for standards program. Consistent with 40 CFR that parameter consistent with the defini- 131.6, a complete water quality standards tion of high quality water found at section submission needs to include both an II.A of this appendix and that quality shall antidegradation standard and be maintained and protected unless the antidegradation implementation procedures. State or Tribe finds, after full satisfaction of At a minimum, States and Tribes shall adopt intergovernmental coordination and public provisions in their antidegradation standard participation provisions of the State’s or and implementation methods consistent Tribe’s continuing planning process, that al- with sections I, II, III and IV of this appen- lowing lower water quality is necessary to dix, applicable to pollutants identified as accommodate important economic or social bioaccumulative chemicals of concern development in the area in which the waters (BCCs). are located. In allowing such degradation, the State or Tribe shall assure water quality I. ANTIDEGRADATION STANDARD adequate to protect existing uses fully. Fur- ther, the State or Tribe shall assure that This antidegradation standard shall be ap- there shall be achieved the highest statutory plicable to any action or activity by any and regulatory requirements for all new and source, point or nonpoint, of pollutants that existing point sources and all cost-effective is anticipated to result in an increased load- and reasonable best management practices ing of BCCs to surface waters of the Great for nonpoint source control. The State or Lakes System and for which independent Tribe shall utilize the Antidegradation Im- regulatory authority exists requiring com- plementation Procedures adopted pursuant

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to the requirements of this regulation in de- serve as the benchmark of the water quality termining if any lowering of water quality that shall be maintained and protected. will be allowed; Waters that may be considered for designa- C. Where high quality waters constitute an tion as Outstanding National Resource outstanding national resource, such as Waters include, but are not limited to, water waters of national and State parks and wild- bodies that are recognized as: life refuges and waters of exceptional rec- Important because of protection through reational or ecological significance, that official action, such as Federal or State law, water quality shall be maintained and pro- Presidential or secretarial action, inter- tected; and national treaty, or interstate compact; D. In those cases where the potential low- Having exceptional recreational signifi- ering of water quality is associated with a cance; thermal discharge, the decision to allow such Having exceptional ecological significance; degradation shall be consistent with section Having other special environmental, rec- 316 of the Clean Water Act (CWA). reational, or ecological attributes; or waters whose designation as Outstanding National II. ANTIDEGRADATION IMPLEMENTATION Resource Waters is reasonably necessary for PROCEDURES the protection of other waters so designated. A. Definitions. Significant Lowering of Water Quality. A sig- Control Document. Any authorization issued nificant lowering of water quality occurs by a State, Tribal or Federal agency to any when there is a new or increased loading of source of pollutants to waters under its ju- any BCC from any regulated existing or new risdiction that specifies conditions under facility, either point source or nonpoint which the source is allowed to operate. source for which there is a control document High quality waters. High quality waters or reviewable action, as a result of any activ- are water bodies in which, on a parameter by ity including, but not limited to: parameter basis, the quality of the waters (1) Construction of a new regulated facility exceeds levels necessary to support propaga- or modification of an existing regulated fa- tion of fish, shellfish, and wildlife and recre- cility such that a new or modified control ation in and on the water. document is required; Lake Superior Basin—Outstanding Inter- (2) Modification of an existing regulated national Resource Waters. Those waters des- facility operating under a current control ignated as such by a Tribe or State con- document such that the production capacity sistent with the September 1991 Bi-National of the facility is increased; Program to Restore and Protect the Lake (3) Addition of a new source of untreated or Superior Basin. The purpose of such designa- pretreated effluent containing or expected to tions shall be to ensure that any new or in- contain any BCC to an existing wastewater creased discharges of Lake Superior bio- treatment works, whether public or private; accumulative substances of immediate con- (4) A request for an increased limit in an cern are subject to best technology in proc- applicable control document; ess and treatment requirements. (5) Other deliberate activities that, based Lake Superior Basin—Outstanding National on the information available, could be rea- Resource Waters. Those waters designated as sonably expected to result in an increased such by a Tribe or State consistent with the loading of any BCC to any waters of the September 1991 Bi-National Program to Re- Great Lakes System. store and Protect the Lake Superior Basin. b. Notwithstanding the above, changes in The purpose of such designations shall be to loadings of any BCC within the existing ca- prohibit new or increased discharges of Lake pacity and processes, and that are covered by Superior bioaccumulative substances of im- the existing applicable control document, mediate concern from point sources in these are not subject to an antidegradation review. areas. These changes include, but are not limited Lake Superior bioaccumulative substances of to: immediate concern. A list of substances identi- (1) Normal operational variability; fied in the September 1991 Bi-National Pro- (2) Changes in intake water pollutants; gram to Restore and Protect the Lake Supe- (3) Increasing the production hours of the rior Basin. They include: 2, 3, 7, 8-TCDD; facility, (e.g., adding a second shift); or octachlorostyrene; hexachlorobenzene; (4) Increasing the rate of production. chlordane; DDT, DDE, and other metabo- C. Also, excluded from an antidegradation lites; toxaphene; PCBs; and mercury. Other review are new effluent limits based on im- chemicals may be added to the list following proved monitoring data or new water quality States’ or Tribes’ assessments of environ- criteria or values that are not a result of mental effects and impacts and after public changes in pollutant loading. review and comment. B. For all waters, the Director shall ensure Outstanding National Resource Waters. that the level of water quality necessary to Those waters designated as such by a Tribe protect existing uses is maintained. In order or State. The State or Tribal designation to achieve this requirement, and consistent shall describe the quality of such waters to with 40 CFR 131.10, water quality standards

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use designations must include all existing 1. A State or Tribe may designate certain uses. Controls shall be established as nec- specified areas of the Lake Superior Basin as essary on point and nonpoint sources of pol- Lake Superior Basin—Outstanding National lutants to ensure that the criteria applicable Resource Waters for the purpose of prohib- to the designated use are achieved in the iting the new or increased discharge of Lake water and that any designated use of a down- Superior bioaccumulative substances of im- stream water is protected. Where water qual- mediate concern from point sources in these ity does not support the designated uses of a areas. waterbody or ambient pollutant concentra- 2. States and Tribes may designate all tions exceed water quality criteria applica- waters of the Lake Superior Basin as Out- ble to that waterbody, the Director shall not standing International Resource Waters for allow a lowering of water quality for the pol- the purpose of restricting the increased dis- lutant or pollutants preventing the attain- charge of Lake Superior bioaccumulative ment of such uses or exceeding such criteria. substances of immediate concern from point C. For Outstanding National Resource sources consistent with the requirements of Waters: sections III.C and IV.B of this appendix. 1. The Director shall ensure, through the F. Exemptions. Except as the Director may application of appropriate controls on pol- determine on a case-by-case basis that the lutant sources, that water quality is main- application of these procedures is required to tained and protected. adequately protect water quality, or as the 2. Exception. A short-term, temporary (i.e., affected waterbody is an Outstanding Na- weeks or months) lowering of water quality tional Resource Water as defined in section may be permitted by the Director. II.A of this appendix, the procedures in this D. For high quality waters, the Director part do not apply to: shall ensure that no action resulting in a 1. Short-term, temporary (i.e., weeks or lowering of water quality occurs unless an months) lowering of water quality; antidegradation demonstration has been 2. Bypasses that are not prohibited at 40 completed pursuant to section III of this ap- CFR 122.41(m); and pendix and the information thus provided is 3. Response actions pursuant to the Com- determined by the Director pursuant to sec- prehensive Environmental Response, Com- tion IV of this appendix to adequately sup- pensation and Liability Act (CERCLA), as port the lowering of water quality. amended, or similar Federal, State or Tribal 1. The Director shall establish conditions authorities, undertaken to alleviate a re- in the control document applicable to the lease into the environment of hazardous sub- regulated facility that prohibit the regulated stances, pollutants or contaminants which facility from undertaking any deliberate ac- may pose an imminent and substantial dan- tion, such that there would be an increase in ger to public health or welfare. the rate of mass loading of any BCC, unless an antidegradation demonstration is pro- III. ANTIDEGRADATION DEMONSTRATION vided to the Director and approved pursuant Any entity seeking to lower water quality to section IV of this appendix prior to com- in a high quality water or create a new or in- mencement of the action. Imposition of lim- creased discharge of Lake Superior bio- its due to improved monitoring data or new accumulative substances of immediate con- water quality criteria or values, or changes cern in a Lake Superior Outstanding Inter- in loadings of any BCC within the existing national Resource Water must first, as re- capacity and processes, and that are covered quired by sections II.D or II.E.2 of this ap- by the existing applicable control document, pendix, submit an antidegradation dem- are not subject to an antidegradation review. onstration for consideration by the Director. 2. For BCCs known or believed to be States and Tribes should tailor the level of present in a discharge, from a point or detail and documentation in antidegradation nonpoint source, a monitoring requirement reviews, to the specific circumstances en- shall be included in the control document. countered. The antidegradation demonstra- The control document shall also include a tion shall include the following: provision requiring the source to notify the A. Pollution Prevention Alternatives Analysis. Director or any increased loadings. Upon no- Identify any cost-effective pollution preven- tification, the Director shall require actions tion alternatives and techniques that are as necessary to reduce or eliminate the in- available to the entity, that would eliminate creased loading. or significantly reduce the extent to which 3. Fact Sheets prepared pursuant to 40 CFR the increased loading results in a lowering of 124.8 and 124.56 shall reflect any conditions water quality. developed under sections II.D.1 or II.D.2 of B. Alternative or Enhanced Treatment Anal- this appendix and included in a permit. ysis. Identify alternative or enhanced treat- E. Special Provisions for Lake Superior. The ment techniques that are available to the en- following conditions apply in addition to tity that would eliminate the lowering of those specified in section II.B through II.C of water quality and their costs relative to the this appendix for waters of Lake Superior so cost of treatment necessary to achieve appli- designated. cable effluent limitations.

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C. Lake Superior. If the States or Tribes any Lake Superior bioaccumulative sub- designate the waters of Lake Superior as stance of immediate concern shall be re- Outstanding International Resource Waters quired to install and utilize the best tech- pursuant to section II.E.2 of this appendix, nology in process and treatment as identified then any entity proposing a new or increased by the Director. discharge of any Lake Superior bioaccumu- lative substance of immediate concern to the APPENDIX F TO PART 132—GREAT LAKES Lake Superior Basin shall identify the best WATER QUALITY INITIATIVE IMPLE- technology in process and treatment to MENTATION PROCEDURES eliminate or reduce the extent of the low- ering of water quality. In this case, the re- PROCEDURE 1: SITE-SPECIFIC MODIFICATIONS quirements in section III.B of this appendix TO CRITERIA AND VALUES do not apply. D. Important Social or Economic Development Great Lakes States and Tribes shall adopt Analysis. Identify the social or economic de- provisions consistent with (as protective as) velopment and the benefits to the area in this procedure. which the waters are located that will be A. Requirements for Site-specific Modifica- foregone if the lowering of water quality is tions to Criteria and Values. Criteria and val- not allowed. ues may be modified on a site-specific basis E. Special Provision for Remedial Actions. to reflect local environmental conditions as Entities proposing remedial actions pursuant restricted by the following provisions. Any to the CERCLA, as amended, corrective ac- such modifications must be protective of tions pursuant to the Resource Conservation designated uses and aquatic life, wildlife or and Recovery Act, as amended, or similar ac- human health and be submitted to EPA for tions pursuant to other Federal or State en- approval. In addition, any site-specific modi- vironmental statutes may submit informa- fications that result in less stringent criteria tion to the Director that demonstrates that must be based on a sound scientific rationale the action utilizes the most cost effective and shall not be likely to jeopardize the con- pollution prevention and treatment tech- tinued existence of endangered or threatened niques available, and minimizes the nec- species listed or proposed under section 4 of essary lowering of water quality, in lieu of the Endangered Species Act (ESA) or result the information required by sections III.B in the destruction or adverse modification of through III.D of this appendix. such species’ critical habitat. More stringent modifications shall be developed to protect IV. ANTIDEGRADATION DECISION endangered or threatened species listed or A. Once the Director determines that the proposed under section 4 of the ESA, where information provided by the entity proposing such modifications are necessary to ensure to increase loadings is administratively com- that water quality is not likely to jeopardize plete, the Director shall use that informa- the continued existence of such species or re- tion to determine whether or not the low- sult in the destruction or adverse modifica- ering of water quality is necessary, and, if it tion of such species’ critical habitat. More is necessary, whether or not the lowering of stringent modifications may also be devel- water quality will support important social oped to protect candidate (C1) species being and economic development in the area. If the considered by the U.S. Fish and Wildlife proposed lowering of water quality is either Service (FWS) for listing under section 4 of not necessary, or will not support important the ESA, where such modifications are nec- social and economic development, the Direc- essary to protect such species. tor shall deny the request to lower water 1. Aquatic Life. quality. If the lowering of water quality is a. Aquatic life criteria or values may be necessary, and will support important social modified on a site-specific basis to provide and economic development, the Director an additional level of protection, pursuant to may allow all or part of the proposed low- authority reserved to the States and Tribes ering to occur as necessary to accommodate under Clean Water Act (CWA) section 510. the important social and economic develop- Guidance on developing site-specific cri- ment. In no event may the decision reached teria in these instances is provided in Chap- under this section allow water quality to be ter 3 of the U.S. EPA Water Quality Stand- lowered below the minimum level required ards Handbook, Second Edition—Revised to fully support existing and designated uses. (1994). The decision of the Director shall be subject b. Less stringent site-specific modifica- to the public participation requirements of tions to chronic or acute aquatic life criteria 40 CFR 25. or values may be developed when: B. If States designate the waters of Lake i. The local water quality characteristics Superior as Outstanding International Re- such as Ph, hardness, temperature, color, source Waters pursuant to section II.E.2 of etc., alter the biological availability or tox- this appendix, any entity requesting to lower icity of a pollutant; or water quality in the Lake Superior Basin as ii. The sensitivity of the aquatic organisms a result of the new or increased discharge of species that ‘‘occur at the site’’ differs from

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INTRODUCTION

This document provides guidance on the antidegradation policy component of water quality standards and its application. The document begins with the text of the policy as stated in the water quality standards regulation, 40 CFR 131.12 (40 FR 51400, November 8, 1983), the portion of the Preamble discussing the antidegradation policy, and the response to comments generated during the public comment period on the regulation.

The document then uses a question and answer format to present information about the origin of the policy, the meaning of various terms, and its application in both general terms and in specific examples. A number of the questions and answers are closely related; the reader is advised to consider the document in its entirety, for a maximum under- standing of the policy, rather than to focus on particular answers in isolation. While this document obviously does not address every question which could arise concerning the policy, we hope that the principles it sets out will aid the reader in applying the policy in other situations. Additional guidance will be developed concerning the application of the antidegradation policy as it affects pollution from nonpoint sources. Since Congress is actively considering amending the Clean Water Act to provide additional programs for the control of nonpoint sources, EPA will await the outcome of congressional action before proceeding further.

EPA also has available, for public information, a summary of each State's antidegradation policy. For historical interest, limited copies are available of a Compendium of Department of the Interior Statements on Non-Degradation of Interstate Waters, August, 1968. Information on any aspect of the water quality standards program and copies of these documents may be obtained from:

David Sabock, Chief Standards Branch (WH-585) Office of Water Regulation-. and Standards Environmental Protection Agency 401 M. Street, S.W. Washington, D.C. 20460

This document is designated as Appendix A to Chapter 2 - General Program Guidance (antidegradation) of the Water Quality Standards Handbook, December 1983.

James M. Conlon, Acting Director Office of Water Regulations and Standards Federal Register / Vol. 48. No. 217 1 Tuesday, November 8, 1983 / Rules and Regulations 51407 --

§ 131.12 Antidegrdation policy. (a) The State shall develop and adopt a statewide antidegradation policy and identify the methods for Implementing such policy pursuant to this subpart. The antidegradation policy and implementation methods shall. at a minimum. be consistent with the following: (1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.

(2) Where the quality of the waters exceed levels necessary to support propagation of fish. shellfish. and wildlife and recreation in and on the water. that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary lo accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality. the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cast-effective and reasonable best management practices for nonpoint source control. (3) When high quality waters constitute an outstanding National resource. such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected. (4) In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be consistent with section 316 of the Act.

i PREAMBLE

51402 Federal Register / Vol. 48. No. 217 / Tuesday, November 8, 1983 / Rules and Regulations

Antidegradation policy The preamble to the proposed rule add pollutants to the water. Moreover. In its entirety, the antidegradation discussed three options for changing the we believe the deleted sentence was policy represents a three-tiered existing antidegradation policy. Option intended merely us a restatement of the approach to maintaining and protecting 1, the proposed option. provided simply basic policy. Since the rewritten various levels of water quality and uses. that uses attained would be maintained. provision, with the addition of a phrase At its base (Section 131.12(a)(1)). all Option 2 stated that not only would uses on water quality described in the next existing uses and the level of water attained be maintained but that high sentence. stands alone as expressing the quality waters, i.e. waters with quality basic thrust and intent of the quality necessary to protect those users batter than that needed to protect fish antidegradation policy, we deleted the must be maintained and protected. This and wildlife, would be maintained [that confusing phrases. Second. in provision establisher the absolute floor is, the existing antidegradation policy § 131.12(a)(1) a phrase was added of water quality in all waters of the minus the “outstanding natural resource requiring that the level of water quality United States. The second level (Section waters” provision]. Option 3 would have necessary to protect en existing use he 131.12(a)(2)) provides protection of allowed changes in an existing use if maintained and protected. The previous actual water quality in areas where the maintaining that use would effectively policy required only that an existing use quality of the waters exceed levels prevent my future growth in the be maintained. In § 131.12(a)(2) a phrase necessary to support propagation of fish. community or if the benefits of was added that “In allowing such shellfish. and wildlife and recreation in maintaining the use do not bear a degradation or lower water quality, the and on the water (“fishable/ reasonable relationship to the costs. State shall assure water quality swimmable”). There are provisions Although there was support for adequate to protect existing uses fully”. contained in this subsection to allow Option 2 there was greater support for This means that the full use must some limited water quality degradation retaining the full existing policy, continue to exist even if some change in after extensive public involvement, as including the provision on outstanding water quality may be permitted. Third, long as the water quality remains National resource waters. Therefore, in the first sentence of § 131.12(e)(2) the adequate to be “fishable/swimmable." EPA has retained the existing wording was changed from ". . . Finally § 131.23(a)(3) provides some antidegradation policy (Section 131.12) significant economic or social protection of waters for which the because it more accurately reflects the development. . .” to “. . . important ordinary we classificationa and water degree of water quality protection economic or social development. . . .” quality criteria do not suffice, denoted desired by the public, and is consistent In the context of the antidegradation “outstanding National resource water.” with the goals and purposes of the Act. policy the word “important” strengthens Ordinarily most people view this In retaining the policy EPA made four the intent of protecting higher quality subsection as protecting and changes. First, the provisions on waters. Although common usage of the maintaining the highest quality waters maintaining and protecting existing words may imply otherwise, the correct of the United States: that is clearly the instream uses and high quality waters definitions of the two terms indicate that thrust of the provision. It does, however, were retained. but the sentences stating the greater degree of environmental also offer special protection for waters that no further water quality protection is afforded by the word of “ecological significance.” There are degradation which would interfere with “important.” water bodies which are important unique, or sensitive ecologically. but or become injurious to existing instream Fourth, § 131.12(a)(3) dealing with the uses is allowed were deleted. The whose water quality as measured by the designation of outstanding National traditional parameters (dissolved deletions were made because the terms resource waters (ONRW) was changed “interfere” and “injurious” were subject oxygen. pH, etc.) may not be particularly to provide a limited exception to the high or whose character cannot be to misinterpretation as precluding any absolute “no degradation” requirement adequately described by these activity which might even momentarily EPA was concerned that waters which parameters. properly could have been designated as ONRW were not being so designated because of the flat no degradation provision, and therefore were not being given special protection. The no degradation provision was sometimes interpreted us prohibiting any activity (including temporary or short-term) from being conducted. States may allow some limited activities which result in temporary and short-term changer in water quality. Such activities are considered to be consistent with the intent and purpose of an ONRW. Therefore, EPA has rewritten the provision to read " . . . that water quality shall be maintained and protected.” and removed the phrase “No degradation shall be allowed. . . .” ii RESPONSE TO PUBLIC COMMENTS

Federal Register / Vol. 48. No. 217 / Tuesday. November 8, 1983 / Rules and Regulations 51409

Antidegradation Policy EPA’s proposal, which would have Most critics of the proposed limited the antidegradation policy to the antidegradation policy objected to maintenance of existing uses, plus three removing the public’s ability to affect alternative policy statements described decisions on high quality waters and in the preamble to the proposal notice, outstanding national resource waters. In generated extensive public comment. attempting to explain how the proposed EPA’s response is described in the antidegradation policy would be Preamble to this final rule and includes implemented, the Preamble to the a response to both the substantive and proposed rule stated that no public philosophical comments offered Public participation would be necessary in comments overwhelmingly supported certain instances because no change retention of the existing policy and EPA did so in the final rule. was being made in a State’s water EPA’s purposes to several comments quality standard. Although that dealing with the antidegradation policy. statement was technically accurate, it which were not discussed in the left the mistaken impression that all Preamble are discussed below. public participation was removed from Option three contained In the the discussions on high quality waters Agency’s proposal would have allowed and that is not correct. A NPDES permit the possibility of exceptions to would have to be issued or a 208 plan maintaining existing uses. This option amended for any deterioration in water was either criticized for being illegal or quality to be “allowed”. Both actions was supported because it provided require notice and an opportunity for additional flexibility for economic public comment. However, EPA retained growth. The latter commenters believed the existing policy so this issue is moot. that allowances should be made for Other changer in the policy affecting carefully defined exceptions to the ONRW are discussed in the Preamble. absolute requirement that uses attained must be maintained. EPA rejects this contention as being totally inconsistent with the spirit and intent of both the Clean Water Act and the underlying philosophy of the antidegradation policy. Moreover, although the Agency specifically asked for examples of where the existing antidegradation policy had precluded growth. no examples were provided. Therefore, wholly apart from technical legal concerns. there appear to be no justification for adopting Option 3.

iii QUESTIONS AND ANSWERS ON ANTIDEGRADATION

1. WHAT IS THE ORIGIN OF THE ANTIDEGRADATION POLICY? The basic policy was established on February 9, 1968, by the Secretary of the U.S. Department of the Interior. It was included in EPA's first water quality standards regula- tion 40 CFR 130.17, 40 FR 55340-41, November 28, 1975. It was slightly refined and repromulgated as part of the current program regulation published on November 8, 1983 (48 FR 51400, 40 CFR § 131.12). An antidegradation policy is one of the minimum elements required to be included in a State’s water quality standards. 2. WHERE IN THE CLEAN WATER ACT (CWA) IS THERE A REQUIREMENT FOR AN ANTIDEGRADATION POLICY OR SUCH A POLICY EXPRESSED? There is no explicit requirement for such a policy in the Act. However, the policy is consistent with the spirit, intent, and goals of the Act, especially the clause "... restore and maintain the chemical, physical and biological integrity of the Nation's waters" (§l01(a)) and arguably is covered by the provision of 303(a) which made water quality standard requirements under prior law the "starting point" for CWA water quality requirements. 3. CAN A STATE JUSTIFY NOT HAVING AN ANTIDEGRADATION POLICY IN ITS WATER QUALITY STANDARDS? EPA's water quality standards regulation requires each State to adopt an antidegradation policy and specifies the minimum requirements for a policy. If not included in the standards regulation of a State, the policy must be specifi- cally referenced in the water quality standards so that the functional relationship between the policy and the standards is clear. Regardless of the location of the policy, it must meet all applicable requirements. 4. WHAT HAPPENS IF A STATE'S ANTIDEGRADATION POLICY DOES NOT MEET THE REGULATORY REQUIREMENTS? If this occurs either through State action to revise its policy or through revised Federal requirements, the State would be given an opportunity to make its policy consistent with the regulation. If this is not done, EPA has the auth- ority to promulgate the policy for the State pursuant to Section 303(c)(4) of the Clean Water Act.

-l- 5. WHAT COULD HAPPEN IF A STATE FAILED TO IMPLEMENT ITS ANTI- DEGRADATION POLICY PROPERLY?

If a State issues an NPDES permit which violates the re- quired antidegradation policy, it would be subject to a discretionary EPA veto under Section 402(d) or to a citizen challenge. In addition to actions on permits, any wasteload allocations and total maximum daily loads violating the antidegradation policy are subject to EPA disapproval and EPA promulgation of a new wasteload allocation/total maximum daily load under Section 303(d) of the Act. If a significant pattern of violation was evident, EPA could constrain the award of grants or possibly revoke any Federal permitting capability that had been delegated to the State. If the State issues a §4Ol certification (for an EPA-issued NPDES permit) which fails to reflect the requirements of the antidegradation policy, EPA will, on its own initiative, add any additional or more stringent effluent limitations required to ensure compliance with Section 30l(b)( l)(C). If the faulty §401 certification related to permits issued by other Federal agencies (e.g. a Corp of Engineers Section 404 permit), EPA could comment unfavorably upon permit issuance. The public, of course, could bring pressure upon the permit issuing agency.

6. WILL THE APPLICATION OF THE ANTIDEGRADATION POLICY ADVERSELY IMPACT ECONOMIC DEVELOPMENT?

This concern has been raised since the inception of the antidegradation policy. The answer remains the same. The policy has been carefully structured to minimize adverse effects on economic development while protecting the water quality goals of the Act. As Secretary Udall put it in 1968, the policy serves l . . . the dual purpose of carrying out the letter and spirit of the Act without interfering unduly with further economic development” (Secretary Udall, February 8, 1968). Application of the policy could affect the levels and/or kinds of waste treatment necessary or result in the use of alternate sites where the environmental impact would be less damaging. These effects could have economic implica- tions as do all other environmental controls.

7. WHAT IS THE PROPER INTERPRETATION OF THE TERM “AN EXISTING USE"?

An existing use can be established by demonstrating that fishing, swimming, or other uses have actually occurred since November 28, 1975, or that the water quality is suit- able to allow such uses to occur (unless there are physical problems which prevent the use regardless of water quality). An example of the latter is an area where shellfish are propagating and surviving in a biologically suitable habitat and are available and suitable for harvesting. Such facts clearly establish that shellfish harvesting is an “existing” use, not one dependent on improvements in water quality. To argue otherwise would be to say that

-2- the only time an aquatic pritection else "exists" is if someone succeeds in catching fish. 8. THE kA7'ER QUALITY STANDARDS REG!lLATION STATES 'rHAT "EXISTING !Js r. " A!4D THE LEVEL c)F 1JATER QUALITY NECESSARY TO PROTECT THE EXISTING USES SHALL HE MAINTAINED AND PROTECTED." HOW FULLY AND AT WHAT LEVEL OF PROTECTION IS AN EXISTING USE TO BE PROTECTED IN ORDER TO SATISFY THE ABO"E REQUIREMENT? NO activity is allowable under the antidegradation policy which would partially or completely eliminate any existing use whether or not that use is designated in a State's water quality standards. The aquatic protection use is a broad category requiring further explanation. Species that are in the water body and which are consistent with the designateduse (i.e., not aberrational) must be protected, even if not prevalent in number or importance. Nor can activity be allowed which would render the species unfit for maintaining the use. Uater quality should be such that it results in no mortality and no significant growth or reproductive impairment of resident species. (See Question 16 for situation where an aberrant sen- sitive species may exist.) Any lowering of water quality below this full level of protection iS not allowed. A State rllay develop Subcategories of aquatic protection uses but cannot choose different levels of protection for like uses. The fact that sport or commercial fish are not present does not mean that the water may not be supporting an aquatic life protection function. An existing aquatic community composed entirely of invertebrates and plants, such as may be found in a pristine alpine tributary stream, should still be protected whether or not such a stream supports a fishery. Even though the shorthand expression "fishable/swimmable" is often used, the actual objec- tive of the act is to "restore and maintain the chemical, physical, and biological integrity of our Nation's waters (section lOl(a)).lJ The term "aquatic life" would more accurately reflect the protection of the aquatic community that was intended in Section 101(a)(2) of the Act.

9. IS THERE ANY SITUATION WHERE AN EXISTING USE CAN BE REMOVED? In general, no. Water quality may s (-':.:8tilR8S be affected, but an existing use, and the level of water quality to protect it must b8 maintained (S131.12(a)(l) and (2) of the regulation). However, the Stat8 may limit or not designate such a use if the reason for such action is non-water quality related. For example, a State may wish to impose a temporary shellfishing ban to prevent OV8rharV8Sting and ensure an abundant population over the long run, or may wish to restrict swimming from heavily trafficked areas. If the State chooses, l/ Note: l Fishable/swinunabl8n is a term of convenience used in the standards program in lieu of constantly repeating the entire text of Section 101(a)(2) goal of the Clean Water Act. As a short-hand expression it is potentially misleading.

-3- for non-water quality redscqs, to limit use desiqnations, it must still adopt criteria *-o protect the use if there is a reasonable likelihood it will actually occur (e.g. swimming in a prohibited wa:er). Yowever, if the State’s action is based on a recognition that water quality is likely to be lowered to ths point th*t it no longer is sufficient to protect and maintain an existing use, then such action is inconsistent with the antidegradation policy. 10. HOW DOES THE REQUIREMENT THAT THE LEVEL OF WATER OUALITY NECESSARY TO PROTFCT THE EXISTING USE(S) BE MAINTAINED AND PROTECTED, WHICH APPEARS IN S131.12(a)(1),(2), AND (3) OF THE WATER QUALITY STANDARDS REGULATION, ACTUALLY WORK? Section 131.12(a)(l), as described in the Preamble to the regulation, provides the absolute floor of water quality in all waters of the United States. This paragraph applies a minimum level of protection to all waters. However, it is most pertinent to waters having beneficial uses that are less than the Section 101(a)(2) qoals of the Act. If it can be proven, in that situation, that water quality exceeds that necessary to fully protect the existing use(s) 3nd exceeds water quality standards but is not of sufficient quality to cause a better use to be achieved, then that water quality may be lowered to the level required to fully protect the existing use as long as existing water quality standards and downstream water quality standards are not affected. If this does not involve a change in standards, no public hearing weuld ho required under Section 303(c). However, public participation would still be provided in connection with the issuance of a NPDES permft or amendment of a 208 plan. If, however, analysis indicates that the higher water quality does result in a better use, even if not up to the Section 101(a)(2) goals, then the water quality standards must be uaraded to reflect the uses presently being attained (S131.1O(i)). Section 131.12(a)(2) applies to waters whose quality exceeds that necessary to protect the Section 101(a)(2) goals of the Act. In this case, water quality may not be lowered to less than the level necessary to fully protect ‘he ‘fishable /swimmable” uses and other existing uses and lay be lowered even to those levels only after following all t3e provisions described in S131.12(a)( 2). This require- ment applies to individual water quality parameters. Section 131.12(a)( 3) applies to so-called outstanding National Resource (ONRW) waters where the ordinary use classifications and supporting criteria are not appropriate. 2-s described in the Preamble to the water quality standards regulation “States may allow some limited activities which result in temporary and short-term changes in water quality,” but such changes in water quality should not alter the essential character or special use which makes the water an ONRH. fSee also pages 2-14 ,- 15 of the Water Ouality Standards Handbook.) Any one or a combiration of several Jctivities may trigger the antidegradzt. im pol icy analysis as discussed almove. Such activities include a scha*iliod water quali’i standards review, -4- the establishment of new or revised wasteload allocations NPDES permits, the demonstration of need for advanced treatnznt or request by private or public agencies or individuals for a special study of the water body.

11. {JILL AN ACTIVITY WHICH WILL DEGR4DE WATER QUALITY, AND PRECLUDE AN EXISTItiG USE IN &?ILY A PORTION OF A WATER BODY (BUT ALLOW IT TO REMAIN IN OTHER PARTS CF THE WATER BODY) SATISFY THE A.VTIDEGRAD- ATION REQUIREMENT THAT EXISTING USES SHALL BE YAIFJTAINED AND PROTECTED?

No. Existing uses must be maintained in all parts of the water body segment in question other thanin restricted mixing zones. For example, an activity which lowers *dater quality such that a buffer zone must he established within a previous shellfish harvesting area is inconsistent with the antidegradation policy. (However, a slightly different approach is taken for fills in wetlands, as explained in Question 13.)

12. DOES ANTIDEGRADATION APPLY TO POTENTIAL USES?

No. The focus of the antidegradation policy is on protecting existing uses. Of course, insofar as existing uses and water quality are protected and maintained by the policy the pwentual improvement of water quality and attainment of new uses may be facilitated. The use attainability require- ments of 5131.10 also help ensure that attainable potential uses are actually attained. (See also questions 7 and 10.)

13. FILL OPERATIONS IN WETLANDS AUTOMATICALLY ELIMINATE ANY EXISTING USE IN THE FILLED AREA. HOW IS THE ANTIDEGRADATION POLICY APPLIED IN THAT SITUATION? Since a literal interpretation of the antidegradation policy could result in preventing the issuance of any wetland fill permit under Section 404 of the Clean Water Act, and it is logical to assume that Congress intended some such permits to be granted within the framework of the Act, EPA interprets 5131.12 (a)(l) of the antidegradation policy to be satisfied with regard to fills in wetlands if the discharge did not result in “signif icant degradation” to the aquatic ecosystem as defined under Section 230.10(c) of the Section 404(b)(l) guidelines. If any wetlands were found to have better water quality than ‘fishable/ swimmable”, the State would be allowed to lower water quality to the no significant degradation level as long as the requirements of Section 131.12(a)(2) were followed. As for the ONRWprovision of antidegradation (131.(a)(2)(3)), there is no difference in the way it applies to wetlands and other water bodies.

-5- 14. KS POLL:JTION RESULTING FRQM NONPOINT SOURCE ACTIVITIES SI:sJECT TO PROVISIONS OF TffE ANTIDEGRADATION POLICY?

Nonpoint source activities are not exempt from the provisions of the antidegradation policy. The language of Sec'tion 131.12 (a)(2) of the regulation: “Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best nangement practices for nonpoint source controi” reflects statutory provisions of the Clean Water Act. While it is true that the Act does not establish a regulatory program for nonpoint sources, it clearly intends that the BMPs developed and approved under sections 205(j), 208 and 303(e) be agressively implemented by the States. As indicated in the introduction, EPA will be developing additional guidance in this area. 15. IN HIGH QUALITY WATERS, ARE NEW DISCHARGERS OR EXPANSION OF EXISTXNG FACILITIES SUBJECT TO THE PROVISIONS OF ANTIDEGRADATION? Yes. Since such activities would presumably lower water quality, they would not be permissible unless the State finds that it is necessary to accommodate important economic or social development (Section 131.12(a)(2). In addition the minimum technology based requirements must be met, including new source performance standards. This standard would be implemented through the waste- load and NPDES permit process for such new or expanded sources.

16. A STREAM, DESIGNATED AS A WARM WATER FISHERY, HAS BEEN FOUND TO CONTAIN A SHALL, APPARENTLY NATURALLY OCCURRING POPULATION OF A COLD-WATER GAME FISH. THESE FISH APPEAR TO HAVE ADAPTED TO THE NATURAL WARM WATER TEMPERATURES OF THE STREM WHICH h0ULD NOT NORMALLY ALLOW THEIR GROWTHAND REPRODUCTION. WHAT IS THE EXISTING USE WHICH MUST BE PROTECTED UNDER SECTION 131+12(a)(l)?

Section 131.12(a)(l) states that “Existing instream water uses and level of water quality necessary to protect the existing uses shall be maintained and protected.” While sustaining a small cold-water fish population, the stream does not support an existing use of a “cold-water fishery.” The existing stream temperatures are unsuitable for a thriving cold-water f ishery . The small marginal population is an artifact and should not be employed to mandate a more stringent UL~ (true cold-water fishery) where natural conditions are not suitable for that use. A use attainability analysis or other scientific assessment should be used to determine whether the aquatic life population is in Eact an artifact or is a stable population requiring

-69 water quality protection. Wbers species appear in areas not normally exoected, come adaptation may have occurred and site- specific criteria nay be appropriately developed. Should the cold-water fish population consist of a .threatened or endangered species, it may require protection under the Endangered Species Act. Otherwise the stream need only be protected as a warm water fishery.

17. HOW DOES EPA'S ANTIDEGRADATION POLICY APPLY TO A PJATERBODY 1JHERE A CHANGE IN MAN'S ACTIVITIES IN OR AROUND THAT kJATERBODY WILL PRECLUDE AN EXISTING USE FROM BEING FULLY MAINTAINED? If a planned activity will forseeably lower water quality to the extent that it no longer is sufficient to protect and maintain the existing uses in that waterbody, such an activity is inconsistent with EPA’s antidegradation policy which requires that existing uses are to be maintained. In such a circumstance the planned activity must be avoided or adequate mitigation or preventive measures must be taken to ensure that the existing uses and the water quality to protect them will be maintained. In addition, in “high quality waters”, under S131.12(a)(2), before any lowering of water quality occurs, there must be: 1) a finding that it is necessary in order to accommodate important economical or social development in the area in which the waters are located, (2) full satisfaction of all intergovernmental coordination and public participation provisions and (3) assurance that the highest statutory and regulatory requirements and best management practices for pollutant controls are achieved. This provision can normally be satisfied by the completion of llater Quality Management Plan updates or by a similar process that allows for public participation and intergovernmental coordination. This provision is intended to provide relief only in a few extra- ordinary circumstances where the economic and social need for the activity clearly outweighs the benefit of maintaining water quality above that required for “fishable/swimmable” water, and the two cannot both be achieved. The burden of demonstration on the individual pri?posing such activity will be very high. In any case, moreover, the existing use must be maintained and the activity shall not preclude the maintenance of a “fishable/swimmable” level of water quality protection. 18. WHAT DOES EPA MEAN BY ” . . .THE STATE SHALL ENSURE THAT THERE SHALL BE ACHIEVED THE HIGHEST STATUTORY AND REGULATORY REQUIREMENTS FOR ALL NEW AND EXISTING POINT SOURCES AND ALL COST EFFECTIVE AND REASONABLE BEST MANAGEMENTPRACTICES FOR NON-POINT SOURCE CONTROL” (S131.12(al(2)? This requirement ensures that the limited provision for lowering water quality of high quality waters down to “fish- able /swimmable” levels will not be used to undercut the Clean \Jater Act requirements for point source and non-point source pollution control. Furthermore, by ensuring compliance

-7- with such statutory and regulatory controls, there is less chance that a lowering of water quality will be sought in order to accommodate new economic and social development.

19. WHAT DOES EPA MEAN BY a . ..IMPORTANT ECONOMIC OR SOCIAL DEVELOPMENT IN THE AREA IN WHICH THE WATERS ARE LOCATED" IN 131.1 2(a)(2)? This phrase is simply intended to convey a general concept regarding what level of social and economic development could be used to justify a change in high quality waters. Any more exact meaning will evolve through case-by-case application under the State's continuing planning process. Although EPA has issued suggestions on what might be considered in determining economic or social impacts, the Agency has no predetermined level of activity that is defined as "important".

20. IF A WATER BODY WITH A PUBLIC WATER SUPPLY DESIGNATED USE IS, FOR NON-WATER QUALITY REASONS, NO LONGER USED FOR DRINKING WATER MUST THE STATE RETAIN THE PUBLIC bJATER SUPPLY USE AND CRITERIA IN ITS STANDARDS? Under 40 CFR 131.10(h)(l), the State may delete the public water supply use designation and criteria if the State adds or retains other use designations for the waterbodies which have more stringent criteria. The State may also delete the use and criteria if the public water supply is not an "existing use” as defined in 131.3 (i.e., achieved on or after November 1975), as long as one of the S131.1O(g) justifications for removal is met.

Otherwise, the State must maintain the criteria even if it restricts the actual use on non-water quality grounds, as long as there is any possibility the water could actually be used for drinking. (This is analogous to the swimming example in the preamble.) 21. WHAT IS THE RELATIONSHIP BETWEEN WASTELOAD ALLOCATIONS, TOTAL MAY;MUM DAILY LOADS, AND THE ANTIDEGRADATION POLICY? Wasteload allocations distribute the allowable pollutant loadings to a stream between dischargers. Such allocations also consider the contribution to pollutant loadings from non- point sources. Wasteload allocations must reflect applicable State water quality standards including the antidegradation policy. No wasteload allocation can be develped or NPDES permit issued that would result in standard being violated, or, in the case of waters whose quality exceeds that necessary for the Section 101(a)(2) goals of the Act, can result a lowering of water quality unless the applicable public participation, intergovernmental review and baseline control requirements of the antidegradation policy have been met.

-8- 22. DO THE INTERGOVERNMENTAL COORDINATION AND PUBLIC PARTICIPATION REQUIREMENTS WHICH ESTABLISH THE PROCEDURESFOR DETERMINING THAT WATER QUALITY WHICH EXCEEDS THAT NECESSARY TO SUPPORT THE SECTION 101(a)(2) GOAL OF THE ACT MAY BE LOWEREDAPPLY TO CONSIDERING ADJUSTMENTS TO THE \IASTELOAD ALLOCATIONS DEVELO?ED FOR THE DKSCHAHGERS IN THE AREA? Yes. Section 131.12(a)(2) of the water quality standards regulation is directed towards changes in water quality per se, not just towards changes in standards. The intent is to zsure that no activity which will cause water quality to decline in existing high quality waters is undertaken without adequate public review. Therefore, if a change in wasteload allocation could alter water quality in high quality waters, the public participation and coordination requirements apply. 23. IS THE ANSiJER TO THE ABOVE QUESTION DIFFERENT IF THE WATER QUALITY IS LESS THAN THAT NEEDED TO SUPPORT "FISHABLE/S\JIMMABLE" USES? Yes. Nothing in either the water quality standards or th+ wasteload allocation regulations requires the same degree of public participation or intergovernmental coordination for such waters as is required for high quality waters. However, as discussed in question 10, public participation would still be provided in connection with the issuance of a NPDES permit or amendment of a 208 plan. Also, if the action. which causes reconsideration of the existing wasteloads (such as dischargers withdrawing from the area) will result in an improvement in water quality which makes a better use attainable, even if not up to the "fishable/swimmable" goal, then the water quality standards must be upgraded and full public review is required for any action affecting changes in standards. Although not specifically required by the standards regulation between the triennial reviews, we recommend that the State conduct a use attainability analysis to determine if water quality improvement will result in attaining higher uses than currently designated in situations where significant changes in wasteloads are expected (see question 10).

24. SEVERAL FACILITIES ON A STREAM SEGMENT DISCHARGE PHOSPHORUS- CONTAINING WASTES. AMBIENT PHOSPHORUSCONCENTRATIONS MEET CLASS B STANDARDS, BUT BARELY. THREE DISCHARGERS ACHIEVE ELIMINATION OF DISCHARGE BY DEVELOPING A LAND TREATMENT SYSTEM. AS A RESULT, ACTUAL WATER QUALITY IMPROVES (I.E., PHOSPHORUSLEVELS DECLINE) BUT NOT QUITE TO THE LEVEL NEEDED TO MEET CLASS A (FISHABLE/SWIMMABLE) STANDARDS. CAN THE THREE REMAINING DISCHARGERS NOW INCREASE THEIR PHOSPHORUSDISCHARGE WITH THE RESULT THAT WATER QUALITY DECLINES (PHOSPHORUS LEVELS INCREASE) TO PREVIOUS LEVELS? Nothing in the water quality standards regulation expli- citly prohibits this (see answer to questions 10 and 23). Of course, changes in their NPDES permit limits may be subject to non-water quality constraints, sl!ch as BPT or BAT, which may restrict this.

-9- 25. SUPPOSE IN THE ABOVE SITUATION kJATER QUALITY IMPROVES TO THE POINT THAT ACTUAL WATER UUALITY NOW MEETS CLASS A RLQUIREMENTS. IS THE ANSWER DIFFERENT? Yes. The standards must he upgraded (see answer tr, question 10). 26. AS AN ALTERNATIVE CASE, SUPPOSE PHOSPHORUSLOADINGS GO DOIJN AND WATER QUALITY IMPROVES BECAUSE OF A CHANGE IN FARMING PRACTICES, E.G., INITIATION OF A SUCCESSFUL NON-POINT PROGRAM. ARE THE ABOVE ANS\JERS THE SAME? Yes. Whether the improvement results from a change in point or nonpoint source activity is immaterial to how any aspect of the standards regulation operates. Section 131+10(d) clearly indicates that xses are deemed attainable if they can be achieved by "... cost-effective z.:d reasonable best management practices for nonpoint source control". Section 131.12(a)(2) of the anti- degradation policy contains essentially the same wording. 27. 1JHEN A POLLUTANT DISCHARGE CEASES FOR ANY REASON, MAY THE WASTELOAD ALLOCATIONS FOR THE OTHER DISCHARGES IN THE AREA BE ADJUSTED TO REFLECT THE ADDITIONAL LOADING AVAILABLE? This may b8 done consistent with the antidegradation policy only under two circumstancest (1) In "high quality waters" where after the full satisfaction of all public participation and intergovernmental review requirements, such adjustments are considered necessary to accomodate important economic or social deVelOpm8nt, and the "threshold" level requirements are met; or (2) in less than "high quality waters", when the eXpeCted improvement in water quality will not cause a better use to be achieved, the adjusted loads still meet water quality standards, and the new wasteload allocations are at least as stringent as technology-based limitations. Of course, all applicable requirements of the Section 402 permit regulations would have to be satisfied before a permittee could increase its discharge.

28. HOW MAY THE PUBLIC PARTICIPATION REQUIREMENTS BE SATISFIED? This requirement may be satisfied in several ways. The State - iy obviously hold a public hearing or hearings. The State may also satisfy the requirement by providing the opportunity for the public to request a hearing. Activities which may affect several water bodies in a river basin or sub-basin may b8 considered in a single hearing. To ease the resource burden cn both the State and public, standards issues may be combined with hearings on environmental impact statements, wate; management plans, or permits. However, if this is dor,e, the public must be clearly informed that possible changes in water quality standards are being considered along with other activities. In other words, it is inconsis- tent with the water quality standards regulation to “back-door” changes in standards through actions on EIS's, wasteload allocations, plans, or permits.

-lO- 29. WHAT IS MEANT BY THE REQUIREMENT THAT, MHERE A THERMAL DISCHARGE IS INCLUDED, THE ANTIDEGRADATION POLICY SHALL BE CONSISTENT WLTH SECTION 316 OF THE ACT? This requirement is contained in Section 131.12 (a)(J) >E the regulation and is intended to coordinate the require,Ten:s and procedures of the antidegadation policy with those escdolished in the Act for setting thernal discharge limitations. Regulations implementing Section 316 may be found at 40 C?R 124.66. The statutory scheme and legislative history inc”,icace that limitations developed under Section 316 take precedsnce over other requirements of the Act. 30. WHAT IS THE RELATIONSHIP BETWEEN THE ANTIGEGRADr?TION Pr,l,rf:Y, STATE WATER RIGHTS USE LAWS AND SECTION 101(g) OF THE Cl.~‘.Ahi WATER ACT WHICH DEALS WITH STATE AUTHORITY TO ALLOCATE WATER QUANTITIES? The exact limitations imposed by section 101(g) are uncl “3r; however, the legislative history and the courts interpreting it do indicate that it does not nullify water quality measures authorized by CWA (such as water quality standards and their upgrading, and NPDES and 402 permits) even if such measures incidentally affect individual water rights; those authorities also indicate that if there is a way to reconcile water quality needs and water quantity allocations, such accC:?odati::z should be be pursued. In other words, where there are alternate ways to meet the water quality requirements of tt,;e Act, the one with least disruption to water quantity allocati->?,< should be chosen. Where a blanned diversion would lead t3 a violation of water quality standards (either the antidegradatizn policy or a criterion), a 404 permit associated with the diversion should be suitably conditioned if possible and/or additional nonpoint and/or point source contro'ls should be imposed to compensate. 31. AFTER READING THE REGULATION, THE PREAMBLE, AND 4LL TYESE QUESTIONS AND ANSWERS, I STILL DON'T UNDERSTAND AlrlTIDEGRAD:;?IO'J. WHOMCAN I TSLK TO? Call the Standards Branch at: (202) 245-3042. You can also call the water quality standards coordinators in each of our EPA Regional offices. •

REGJ:ON 'V GUIDANCE fOR A,NTIDEGRADATI.ON POLICY IMPLEMENTATION 'FOR HIGH q'UA£J:TY WATERS - DECEMBER 3~ 1986

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REGION V GUIDANCE FOR ANTIDEGRADATION POLICY IMPLEMENTATION FOR HIGH QUALITY WATERS

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"",.;.,<,., ,<> ,.~: . ··!.DE~EMBER 3~ 1986 ~ " ~" -.

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. \ ,I. • TABLE OF CONTENTS

• INTRODUCTION • I. ANTIDEGRAOATION AND WATER QUALITY STANDARDS II. APPLICATJONOF ANTIDEGRAOATION POLICY TO NPDES PERMITS A. Eligibility Requirements B. What Constitutes "Lowering of Water Quality"?

I • c. ::o:::::tion.Ofl:·lm~ortant Economic or Social Development tn

D. Pu~l i c parti~iPa i~n-' and, IntergO~er~ment~,Lco.operati on , ' E•. Deri~i~~?e~jsedt Ef.~uent Limits .' '.' Ant·1oegradat.ion Implementation Without Numerical NPDES Limi'ts ·F. • . \ 111. OTHER ANTIDEGRAOATION POLICY CONSiDERATIONS A. Applicability of Antidegradation to All Cnemical Pollutants \ i B. Categories of State Waters -. '. C. Nonpoint Sources and Clean Water Act Sections 401' and 404 I " D. Cross-Media Effects

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.. • INTRODUCTION All States must have antidegradation policy language consistent with

40 CFR 131.12 in ~heir water quality standards, and ~ppi-opriate implementation procedures. This document is intended to provide guidance to the States in • . - fonm~lizing their own antidegradation policy implementation procedures. It also serves as the Regional benchmark for evaluating antidegradation policy issues related to Regional reviews of NPDES permits, wasteload allocations, or other actions which could lower water quality •. The Region recommends that. State procedures be developed in such a way that . . ~ dischargers cOr)tribute appropriately .to meeting t-he an~iqegradation requir~- .' .. . "...... : '. ments. It is. exp~c~~d _t_~at .req.~i red i nforynati on' and demoQstrati ons wiHbe

t" .:... ~~-.~.: .*:-(- '. '!- .. developed prima'r.lly by t~discharg-er(s) requesting a lowering of water quality.

- The anti~egradation:'policy in 40 CFR 131.12 requires that uses be protected. Since uses are protected by water quality criteria, any application for less stringent effluent limitations,increased discharge loads, or new discharges, --. may be"- considered only if the quality of the receiving waters exceeds the water quality.' standards. _ \ : .' _THe Federal antidegradation policy furt.her specifies that State < antidegradation policy and implementation methods will, at a minimHm, maintain . .. and protect water quality uwhere the quality of the waters exceed·levelsne~es- . sary to support propagation of. fish, shellfish,.and wildlife and recreation in ......

and on the water ll • Federal pol icy does not 1 im;'t the antidegrada-tion pol;c,)';

therefore, !!1l. action which would resul't in a lowering of wa~er qU'alpty in - ~ high quality wat"ers is potentially subject to -antidegradat: ~rt poli~y'implemen­ tation. This includes, but is not limited to, the following types of point

source circumsta~ces: • 1. industrial production increases, -2- .. 2. new discha~ger .or source, 3 • municipal. growth, • 4. reallocation of abandoned load allocations, 5. modeling revisions, and 6. correction of wasteload allocation errors. The basic principle is that the same kind of protection is to be applied . l • to all unused assimilative 'capacity (the increment in water quality above that required to meet standar~S}J . , ' ' - , 1~ . ' Altho~gh t.he fol,o~,ng gu'idanc~~fpcuses on the a.~pli~ation of the.", , . , : ~. 1.' " , ,.' : . ' . ,I antideg.r~dation~,,~~.\1.:Ct "~~ NloE-~!.permits" the st~te, sho"l~ also plan to 'dev~lop

procedures for;,assessing.no~point source activities that lower water i . i quality. Th~y include/-but 'are not limited to, the following: o changes in agricultur:-a1 activities; \ o changes in silvicultural activities;

0' changes in mining activities;

'. t I '~~, " ' 0 urban development; " " o r~~oval of BMPs; o discharge of. dredged and f1-11 materials (e.g., §402 and §404 permits);

\ ! o §401 certifitations; . , i

, , o §208, §303(c), and water quality management plan approvals; ',' o resource management plan approval s;'

o land managem.ent (e.g .. , forest) plan approvals; and ,~ o RCRAICERCLA actions that affect water quality. For nonpoint source activities that' currently require public notification, . . . the infor.nation con~ained in Section 11-0 below must be part of the public notification process. ' A discussion of the requirements with regard to • ", Sections 401 and 404 permits is contained in Section Ill-C. For the other activities that currently do not require public notification, the State should develop a process. to ensure that public notification is provided for those activities that would lower water quality, This will ensure that the public . • . is afforded the opportunity to comment on all actions that lower water quality.

Where nonpoint source attivities are no~ currently permitted, or otherwise regulated 'through water quality protection plans, it may not be feasible at this time to develop antidegradation procedures for them, or to apply

antidegradation policy to them~ . , 1. ANTIDEGRADATiON AND W~TER QUALITY, STANDARDS ° ...... - , 0 :', . " App11cati-on pf the aritidegradatior'! pol i cy assumes.that the water' . ~... ~~~~:' "¥: '. ,.~. '. . , qual ity stancs'ards have been', appropri a~ely set 'for waterbodies where water

- quality ~ill be lowered. Where the standards themselves are questionable, it will be necessary to review, and if appropriate revi-se, the standards.

Il~ APPLICATION OF ANTIDEGRADATION POLICY TO NPDES PERMITS .. 'Implementation of antidegradation poliCy for NPDES permits is a. four • " step process. The first step i~ to determine whether the proposed action '", . is eligible for consideration, as desc~ibed in Section A. ;he second step , is to determine if the eligible proposed action would cause ~ significant· " . lowering of water quality fSection B) •. If the predi~ted change in wa~er . .' quality is inSignificant, .the~ nO,.further "tests" are required. Where the p'roposed action would Significantly lower water quality, tnen the third step involves demonstration' that' lowering water" quality is riecessary to a . . . ! accommodate 'important economic and social·development '0' the area

(Sectio~ C). Section,D addresses the public participation and intergovern­ menta 1 cooperation elements of the ant i degradat i on pol i·cy. Where the documentati on for a permit i ssuance/reissuance/modi fi cation 'does not • , , , provide adequate evid~nce of Sta~e anti~egradat,ion policy, implementation,'

the Region may.obj~ct to the proposed permit.

. ' , It should. be, noted that some actions affecting ·NPDES permits • (i.e., relaxation of exist.ing permit Limitations) may be subject to the antibacksliding rule~ Antibacksliding requirements are found at , 40 CFR §122.44(1) of USEPA's NPDES regulations. Application of anti- backsliding is separate from implementation of the antidegradation policy. , ,

g l A. Ell :::::: a::q:::r::tion whieh might lower water quality is ~onsidered,- i,tJust 'f1rs:tbe .demonst~ated that:two conditions are met: .' :,,; '-:! ~. ,-,:' '-".,' '--' , - .' -., : . .' - ,' .. , 1. 'wat~r ,quali~'y ~xceeds' that necessary to meet st'andards .. and ,,~.. >" -:C',:,; ~:-(. ,. ,".' ' , 2.-"proposed.ef1j1uent limitations will' not result in violations of i , water quality.~ - I standards •. This applies to proposed new dischargers, existing disChargers \ 'with anticipated influent or production increases, and existing dis- •• '" chargers without influent or,-production increases·. For proposed,new • '.,»f"' I dischargers, it mus~ also b~ demonstrated that the new facility , "!.' • proposes to build appropriate treatment", or apply BMP·s. B. What Constitutes "Lowering of Water QualitY-I? . - Questions have'arjsen concerning the definition'of "lowering of 0" • water qual ity". In a practic~.1 sense, the question is whether an increased pollutant load constitutes a lowering of water quality even . if the increase is so smal'.that no significant cha~ge in water quality can be demonstrated. In the strictest sense, the 'answer is yes, but this must be . . tempered with practical considerations to ensure that scarce pollution .' control resources a~e used judiciously. Consequently, the Region will -5-

consider that antidegradation requirements have been satisfied where

it is demo~strated that there will be no significant lowering of water • qual ity. The definition of a "significant" change will be left up to

individual States s subject to Regional approval • • The State could for example, set an absolute or percent change in predicted ambient conditions which would be considered "insignificant-.

It is expected that th~ designated cutoff would be different for

. ~ differe.nt- categori~s of ·s·ubsta,nces, i.e.,-it would be smaller for .• . ' .. . -. - ..... ',; .", .. persisten"· 0,S:, -~ar~in0genic· substan~es than for nonpersistent substances •. • -~/~~ ~-.-~.: .,:-(. .I~. . The basi$· for the. cutoff' would ·need to be justified. Proposed changes

in t~chno10gy-based limits on effluent limited waters could be converted to mass-balance or similar calculations for use of the per- cent cutoff approach • ... The above substance specific alternatives do not address the

• ",I possibility.of additive or s~ne.rgistic effects, however. Therefore,

. the discharger may have to submit r~sults from appropriate bioassay(s)

to demonstrate that such interactions will not inadvertent~ result in toxtcity in the recehing waters •. •

The approach or approaches. . ... which the State proposes to use should . be fully documented a-nd justified in its. antidegradation -policyimple- mentation procedures. If the State chooses to establish de minimis t£'-ts, due­ cons.ideration must also be given to the possibility that repeated or multiple "insignificant" changes could cumulatively-cause significant changes in water quality. . . -6-

c. Demonstration of "Important-Ec.onomic- or Social Development in the Area- rhe Federarantidegradation policy requires a demonstration that·

lowering water quality· is "necessary to accommodate im~ortant economic • or social development in the area "in whjch the waters are located".

This demonstration is,~ intended to be of the same magnitude or stringency as the "widespread social and economic impact" test for

variances and • downgradings'. r of.use designations. The Regi on r~eogl'ize~that the definition of 'important' development needs to be flexible to accommodate differences in State . ,J-- -. -:~.,,: -,- ...... -. ,cfr~u~st~nc~~~,~., ;~ :~.re~ ~nterest ~f. flexi~ilitY,. t~e .~egi.on 'is t~e!efore def,n,ng. ~lHy :the mlnimum economlc/socia-l demonstratlon considered .. '...... if·, ·""1 -. acceptable for p~rpo~es of antidegradation policy implementation. To • meet the minimum requirements, the dischar.ger must demonstrate to the . . satisfaction of the ~ate pollution control agency and Region V that

, lowering of water quality is necessary to accommo~ate:

• .~~ ,I 1. new production by a new discharger; or •••• ------o· • 2. indu'strial production which 'canr~ot be .accommodated by the current treatment facility While maintaining consistent compliance with current effluent limits even though the . . , " ~ , . .. curr~nt facility is appropri~te and ·is optimally·maintained and operated; or

3. ; ncreased 1oadi ng to a muni ci pal wastewater tr~atment pl_ant .. . because of community growth, which cann.ot be" accommodated by the current treatment" facility while maint~::ning consis~ent compliance with. current effluent limits even though.the current facility is appropriate and 1s optimally maintained • an~ operated;-or -1-

4. other circumstances deemed analogous to 1-3. After identifying any such increased production or population . , . growth in the area in which the waters are located. the State must make • . . a specific finding that such increased production or growth is necessary for important social and economic development. Consistent compliance with effluent limits is defined as 99 percent compliance with daily maxima. and 95 percent compliance with monthly averages. If consist,ent compl;,ance can be maintained. then lower water . qual i~y. is not lI'lecessa~y~ ... ~nd is therefore .no~ permissible •. Wt\.ere a ...... ' "...... ". . dis~har~r ~laims, ttiat consistent compiiance canpot be maintained. it . . ', ..,._. ~~.~~ ; ... ~ -: ...... , must also ti,e de~ermined that the 1:reatment facility is appropriate. and is optimally operated and maintained. Inappropriate facilities or mediocre operation and maintenance are not acceptable justification for lowering water quality • ._'. However, a facility may.be considered for relaxed, permit limits if , " the discharger achieves consi~tent, compliance through extraordinary

" ' means. such as disproportionate op'eration and maintenance costs for < best professional judgment (BPJ) limitations, or production shutdown • during crit~cal wastel~ad allocation periods.

In addition to tne factors listed ~bove. the State should ...... / consider whether the potential lowering of water quality is in the

public interest. The addition of this "publ'c in~~rest··c~ndition

provid~s the mechanism wher'eby the State pollutio" control '~gency can override an approval based on 1-4 above, if there is a compelling, public opinion or environmental reason to do so • • -8..

The States are strongly encouraged to implement more stringent

criteria 'for defining t'necessary economic an~ social development" • A more extensive economic analysis could require the discharger • , .. to demonstrate,the extent to which the proposed decrease in water quality would create an increase in economic or social development, and why the change in water quality is necessary to achieve such development. A discharger·could, for example, document expected growth jn the .foll)owing• i factors:

o ~rea ~pll oymen:t.·":-

·'.c ' , •• _ • .::; .-; • : _ .1 ---t~. , o ~ ...... ,-~. : o. di ~eci and ~ ; ndi re'ct income, and/or :~~ i:: . ' ,.J' '·1 .. ' " 2;.;:.': th,e c~~u~ity:tax bas.e.

, I Alternati.vely~ this step cpuld also be addressed by demonstrating the negative economic or social effects of the additional cost neces­ ,sary to maintain existing water quality, e.g., land treatment or '. advanced treatment. -, 0.- Public Participation and Intergovernmental Cooperation 't· .. Public participation and intergovernmental cooperation are

essential elements of an~idegradation policy implementation. Potential

parti~ipan..ts mus,t explic,itly be made aware of -anti.degradation policy -...... issues and the potential impact of any lowering of water quality. To this end, the Region recommends that any public notice related,

to potential lowe:ing of water quality should add~ess. or contain , . ,- explicitly reference the availability of documents which address. at least the following topics: . ,

1. stat~~entof·the State's antidegradation policy;'

2. specific identification of sub~tances for which effluent limit • . relaxation~is being proposed; 3. description of the current .level of water quality;- 4. description of the impact that the proposed action will have on 4It water quality; 5. summary of other actions that have lowered water quality and determination of cumulative impacts; 6. de minimis test• justification (if appropriate); 7. important social and economic development demonstration in

support of effluent limit relaxation or new disch~rge (if

appropri ate);... . 8: ty,pe.. Qf stJbstance i'nvolved (e~g,~._thresho}d/non-threshold; 'p'ersts~ent/nonpersi stent)· and known and ··suspected envi ron- .~~~.~~.-:.... :-.. ". ~.~. ... .~: . ., -. '. mental 'effects ; and ·9. identity of other appropriate agencies which have been -notified of the proposed action. -- 4It While fonmal notice of intent to authorize degradation of existing _water quality is required on\y at th~ time ~n NPDES pe"rmit is public noticed, it is both advisable 'and prudent to.inform interested and

affected parties as early in thep~ocess as possible. E. Deriving Effluent Limits

In those c~ses where- relaxed effluent limitations arejustifiect, or where limits are being derived for a new discharger, the penmit writer must set appropriate effluent limitations. In practice; proposed effluent limits wi'll actually be derived prior to .starting Ithe anti- degradation .eligibility procedures. Whatever the :recise" sequence. of event.s. the 1 im; ts fi na lly incorporated into the proposed permi t must reflect the effluent ,quality aChievable by the facility. This 4It (. --10- ..

principle.is ~lready articulated in several places in the Fed~ral CFR regulations. - for various... circumstances: 40 122.62(a)(17), • 40 CFR 122.44(1)(2)('), and 40 CrR 133.105{f). . " When new effluent limits are added to an existing permit for parameters not previously limited in that permit, and the effluent quality has. not changed, an antidegradation demonstration is not . . . . I necessary. The proposed limit should reflect the effluent quality . . . . , . achieved .by th.e fa 11 ity. . ". F. Ant1de raaati~' I~ i~~ntation Wit~out Numerical NPOES Limits .. ·~,~~Et.~e,Titsld~,not ~outinel.l' c~;'t;in num~rlcal ·lI~its for all of tne·'substanc.esrourid ; n a discharger's effluent. Nevertheless', all . " 1 substances are-subject to antidegradation policy implementation, whether or not they are specifically limited in the permit. To apply \ antidegradation to substances not currently limited in a permit, the .... • State can utilize the notification procedures specified in 40 CFR 122.42, requiring ~ischargers to notify the State pollution ... : .". .. control agency of any actual or anticipated change in effluent characteristics, as compared with those existing at the time the

permi·t w~S" issue'd •. ." '

Processing. a request f~r increased discharge through the

notifica~ion procedure is essentially the same as processing a request for relaxed permit limits. The only significant difference is that an actual permit modification may not be required. ;.. All other requirements must be met,including those'for public participation and intergovern­ • mental cooperation • -11-

• I I I. OTHER ANTI DEGRADATION CONSIDERATIONS • A. Applicability of Antidegradation to All Chemical Pollutants

Antidegradationis applica~le to all chemical pollutants, even though there is a substantial variation in physical, chemical, and

biological properties among chemical pollutants, because ~here are environmental benefits to be gained from water quality better than the

minimum prescribed by water quality standards, for all ~ategories of chemi ca1s. For example,. by d~fin1t1on, thresh~l~ chemicals are believed" to nQt .

o· • el ici t ".uJl'!~ceptabl e~. effects until some criti Cll 1 (threshol d)" concentra- .' ..,-,.: =.~ :--:.'. -"."'(. . - '. ~.' • . ~ " tion"':'-s exceeded.' However, the absence of ··unacceptable N effects does ... not preclude the occurrence of "adverse" effects at, and possibly even below._ the threshold (Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses, -. ... USEPA, Draft, March 4, 1985) • . , , Nonconservative chemi~als can also have,more impact than their temporary nature might imply. BOO loadings, for instance, have an

inverse proportional effect on dissolved oxygen, whi~h'itselfmay hav.e . . ' a continuous ~irect relationship to the quality of aquatic life~ .

For conservative' chemi ca~ poll uta'nts, the bertefits are sel f-evident~ -.

<... A conservative chemical will per:sist in the environment for a long time,

if not indefinitely; continued loading of conser~ative ch~icals is . therefore likely to result in accumulation. The.>otential'for a~cumu-

lat~on to deleterious levels is evident, and is the basis for • minimizing the discharge of such substances, whe~ever possible • , , • Non-threshold-chemicals ~ydefi.nition, have no safe le_vel. This

cat~gory ;~cl\ldes many of the carcinogens, mutagens, and teratogens. ' · - States are urged to apply more stringent antidegradation criteria to '.

• this categorjof chemicals. .~. . '-:. ' .. " B. . Categori eS~f·.. State .Waters,. The Federal antidegradation policy, specifies thatthewater-qual1ty • of outstanding. ~atfo:nal'~-resource,waters' ({)NRw~~ys~a 1t_b~m(intcdned<, . , ,.::...... ) :."... ,~._,:,.-___ •... ". .,.,'··7.~ '=-;.~ :'.-, ":0,,:" and protected •. ' ]here are -no .exceptio.ns pe.Mnittedi,!,this 'case;Witer7:-;·· . quality may not be degraded under any circumstances. . The each State may have., ~' R~gion1'~ec",,:. ;0.' ~~i~es:'ithatsomewateJ:s'ln '. ' .' • -.... • ..... - .. -~ .~ .. :;:~: ~-.;:. - - ,speci a.l·r~~~lIr~~·v lues which shouldb~ .afforde( a ~.lev~l Of:proiectio~'~ .:-.?:.:;'--' .;:. .t-' .!~. : ., '. . .,' beyond that ,requir~d state-wide for high quality waters, but not as '- .....- . 1 stringent as forONRW·s. The States are therefore encouraged to create an intermediate category with an appropriate level of protection. \ •• ...C. Nonpoint Sources and Clean Water Act Sections 401 and 404 As part of the requirement that high quality waters be maintained . . .' ..'" and protected, thel Federal:aritidegradation policy stipulates that th~ States shall achieve all cost-effective and reasonable best management practices lor ,nonpoint source control.' This provision makes.it,the State" sresQons i' bil:i:ty.~(). worK-t:to~a ~ds-nOnpo i n~ s~(J ~'~e e~n~t~ 1~·a,!~ '. . , to ensure, that Section 401 certifications and Section 404 permit. _ . , !l~: __-_~_ _ ~ _~ . -- .'.'.;; ,. . .. ' issuance take antidegr-adatior'l' policy into cons;deratio~. These

subjects; should :be addres'sed intheState's implenientationprocedures~ D. Cross-Media Effects "

, The Reg10nr~co~nizes thatcros,s-media effects may bean essential.c _ • component in some antidegradation determinations. Since a basic • -13.:

principle of environmenta' protection is the minimization of adverse

environmental effects in all media, it is .recommended . that the State • antidegradation procedures should at least identify the need to determine relative environmental impacts across media, and eventually establish "

systematic procedu~es for doing so.

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Page 475 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1344

(D) the persistence and permanence of the ing the withdrawal of specification) as a disposal effects of disposal of pollutants; site, whenever he determines, after notice and (E) the effect of the disposal of varying opportunity for public hearings, that the dis- rates, of particular volumes and concentra- charge of such materials into such area will tions of pollutants; have an unacceptable adverse effect on munici- (F) other possible locations and methods of pal water supplies, shellfish beds and fishery disposal or recycling of pollutants including areas (including spawning and breeding areas), land-based alternatives; and wildlife, or recreational areas. Before making (G) the effect on alternate uses of the such determination, the Administrator shall oceans, such as mineral exploitation and sci- consult with the Secretary. The Administrator entific study. shall set forth in writing and make public his findings and his reasons for making any deter- (2) In any event where insufficient information mination under this subsection. exists on any proposed discharge to make a rea- sonable judgment on any of the guidelines estab- (d) ‘‘Secretary’’ defined lished pursuant to this subsection no permit The term ‘‘Secretary’’ as used in this section shall be issued under section 1342 of this title. means the Secretary of the Army, acting (June 30, 1948, ch. 758, title IV, § 403, as added through the Chief of Engineers. Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 883.) (e) General permits on State, regional, or nation- wide basis DISCHARGES FROM POINT SOURCES IN UNITED STATES VIRGIN ISLANDS ATTRIBUTABLE TO MANUFACTURE OF (1) In carrying out his functions relating to RUM; EXEMPTION; CONDITIONS the discharge of dredged or fill material under Discharges from point sources in the United States this section, the Secretary may, after notice and Virgin Islands in existence on Aug. 5, 1983, attributable opportunity for public hearing, issue general to the manufacture of rum not to be subject to the re- permits on a State, regional, or nationwide basis quirements of this section under certain conditions, see for any category of activities involving dis- section 214(g) of Pub. L. 98–67, set out as a note under charges of dredged or fill material if the Sec- section 1311 of this title. retary determines that the activities in such TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED category are similar in nature, will cause only STATES minimal adverse environmental effects when performed separately, and will have only mini- For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, mal cumulative adverse effect on the environ- respectively, set out as notes under section 1331 of Title ment. Any general permit issued under this sub- 43, Public Lands. section shall (A) be based on the guidelines de- scribed in subsection (b)(1) of this section, and § 1344. Permits for dredged or fill material (B) set forth the requirements and standards (a) Discharge into navigable waters at specified which shall apply to any activity authorized by disposal sites such general permit. (2) No general permit issued under this sub- The Secretary may issue permits, after notice section shall be for a period of more than five and opportunity for public hearings for the dis- years after the date of its issuance and such gen- charge of dredged or fill material into the navi- eral permit may be revoked or modified by the gable waters at specified disposal sites. Not Secretary if, after opportunity for public hear- later than the fifteenth day after the date an ap- ing, the Secretary determines that the activities plicant submits all the information required to authorized by such general permit have an ad- complete an application for a permit under this verse impact on the environment or such activi- subsection, the Secretary shall publish the no- ties are more appropriately authorized by indi- tice required by this subsection. vidual permits. (b) Specification for disposal sites (f) Non-prohibited discharge of dredged or fill Subject to subsection (c) of this section, each material such disposal site shall be specified for each (1) Except as provided in paragraph (2) of this such permit by the Secretary (1) through the ap- subsection, the discharge of dredged or fill mate- plication of guidelines developed by the Admin- rial— istrator, in conjunction with the Secretary, (A) from normal farming, silviculture, and which guidelines shall be based upon criteria ranching activities such as plowing, seeding, comparable to the criteria applicable to the ter- cultivating, minor drainage, harvesting for ritorial seas, the contiguous zone, and the ocean the production of food, fiber, and forest prod- under section 1343(c) of this title, and (2) in any ucts, or upland soil and water conservation case where such guidelines under clause (1) practices; alone would prohibit the specification of a site, (B) for the purpose of maintenance, includ- through the application additionally of the eco- ing emergency reconstruction of recently nomic impact of the site on navigation and an- damaged parts, of currently serviceable struc- chorage. tures such as dikes, dams, levees, groins, (c) Denial or restriction of use of defined areas riprap, breakwaters, causeways, and bridge as disposal sites abutments or approaches, and transportation The Administrator is authorized to prohibit structures; the specification (including the withdrawal of (C) for the purpose of construction or main- specification) of any defined area as a disposal tenance of farm or stock ponds or irrigation site, and he is authorized to deny or restrict the ditches, or the maintenance of drainage use of any defined area for specification (includ- ditches; § 1344 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 476

(D) for the purpose of construction of tem- under paragraph (1) of this subsection, the Sec- porary sedimentation basins on a construction retary and the Secretary of the Interior, acting site which does not include placement of fill through the Director of the United States Fish material into the navigable waters; and Wildlife Service, shall submit any com- (E) for the purpose of construction or main- ments with respect to such program and state- tenance of farm roads or forest roads, or tem- ment to the Administrator in writing. porary roads for moving mining equipment, (h) Determination of State’s authority to issue where such roads are constructed and main- permits under State program; approval; noti- tained, in accordance with best management fication; transfers to State program practices, to assure that flow and circulation (1) Not later than the one-hundred-twentieth patterns and chemical and biological charac- day after the date of the receipt by the Adminis- teristics of the navigable waters are not im- trator of a program and statement submitted by paired, that the reach of the navigable waters any State under paragraph (1) of this subsection, is not reduced, and that any adverse effect on the Administrator shall determine, taking into the aquatic environment will be otherwise account any comments submitted by the Sec- minimized; (F) resulting from any activity with respect retary and the Secretary of the Interior, acting to which a State has an approved program through the Director of the United States Fish under section 1288(b)(4) of this title which and Wildlife Service, pursuant to subsection (g) meets the requirements of subparagraphs (B) of this section, whether such State has the fol- and (C) of such section, lowing authority with respect to the issuance of permits pursuant to such program: is not prohibited by or otherwise subject to reg- (A) To issue permits which— ulation under this section or section 1311(a) or (i) apply, and assure compliance with, any 1342 of this title (except for effluent standards or applicable requirements of this section, in- prohibitions under section 1317 of this title). cluding, but not limited to, the guidelines (2) Any discharge of dredged or fill material established under subsection (b)(1) of this into the navigable waters incidental to any ac- section, and sections 1317 and 1343 of this tivity having as its purpose bringing an area of title; the navigable waters into a use to which it was (ii) are for fixed terms not exceeding five not previously subject, where the flow or cir- years; and culation of navigable waters may be impaired or (iii) can be terminated or modified for the reach of such waters be reduced, shall be re- cause including, but not limited to, the fol- quired to have a permit under this section. lowing: (g) State administration (I) violation of any condition of the per- (1) The Governor of any State desiring to ad- mit; minister its own individual and general permit (II) obtaining a permit by misrepresenta- program for the discharge of dredged or fill ma- tion, or failure to disclose fully all rel- terial into the navigable waters (other than evant facts; those waters which are presently used, or are (III) change in any condition that re- susceptible to use in their natural condition or quires either a temporary or permanent by reasonable improvement as a means to trans- reduction or elimination of the permitted port interstate or foreign commerce shoreward discharge. to their ordinary high water mark, including all (B) To issue permits which apply, and assure waters which are subject to the ebb and flow of compliance with, all applicable requirements the tide shoreward to their mean high water of section 1318 of this title, or to inspect, mon- mark, or mean higher high water mark on the itor, enter, and require reports to at least the west coast, including wetlands adjacent thereto) same extent as required in section 1318 of this within its jurisdiction may submit to the Ad- title. ministrator a full and complete description of (C) To assure that the public, and any other the program it proposes to establish and admin- State the waters of which may be affected, re- ister under State law or under an interstate ceive notice of each application for a permit compact. In addition, such State shall submit a and to provide an opportunity for public hear- statement from the attorney general (or the at- ing before a ruling on each such application. torney for those State agencies which have inde- (D) To assure that the Administrator re- pendent legal counsel), or from the chief legal ceives notice of each application (including a officer in the case of an interstate agency, that copy thereof) for a permit. the laws of such State, or the interstate com- (E) To assure that any State (other than the pact, as the case may be, provide adequate au- permitting State), whose waters may be af- thority to carry out the described program. fected by the issuance of a permit may submit (2) Not later than the tenth day after the date written recommendations to the permitting of the receipt of the program and statement sub- State (and the Administrator) with respect to mitted by any State under paragraph (1) of this any permit application and, if any part of such subsection, the Administrator shall provide cop- written recommendations are not accepted by ies of such program and statement to the Sec- the permitting State, that the permitting retary and the Secretary of the Interior, acting State will notify such affected State (and the through the Director of the United States Fish Administrator) in writing of its failure to so and Wildlife Service. accept such recommendations together with (3) Not later than the ninetieth day after the its reasons for so doing. date of the receipt by the Administrator of the (F) To assure that no permit will be issued program and statement submitted by any State, if, in the judgment of the Secretary, after con- Page 477 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1344

sultation with the Secretary of the depart- a program approved under subsection (h)(2)(A) of ment in which the Coast Guard is operating, this section, in accordance with this section, in- anchorage and navigation of any of the navi- cluding, but not limited to, the guidelines estab- gable waters would be substantially impaired lished under subsection (b)(1) of this section, the thereby. Administrator shall so notify the State, and, if (G) To abate violations of the permit or the appropriate corrective action is not taken with- permit program, including civil and criminal in a reasonable time, not to exceed ninety days penalties and other ways and means of en- after the date of the receipt of such notification, forcement. the Administrator shall (1) withdraw approval of (H) To assure continued coordination with such program until the Administrator deter- Federal and Federal-State water-related plan- mines such corrective action has been taken, ning and review processes. and (2) notify the Secretary that the Secretary shall resume the program for the issuance of (2) If, with respect to a State program submit- permits under subsections (a) and (e) of this sec- ted under subsection (g)(1) of this section, the tion for activities with respect to which the Administrator determines that such State— State was issuing permits and that such author- (A) has the authority set forth in paragraph ity of the Secretary shall continue in effect (1) of this subsection, the Administrator shall until such time as the Administrator makes the approve the program and so notify (i) such determination described in clause (1) of this sub- State and (ii) the Secretary, who upon subse- section and such State again has an approved quent notification from such State that it is program. administering such program, shall suspend the issuance of permits under subsections (a) and (j) Copies of applications for State permits and (e) of this section for activities with respect to proposed general permits to be transmitted which a permit may be issued pursuant to to Administrator such State program; or Each State which is administering a permit (B) does not have the authority set forth in program pursuant to this section shall transmit paragraph (1) of this subsection, the Adminis- to the Administrator (1) a copy of each permit trator shall so notify such State, which notifi- application received by such State and provide cation shall also describe the revisions or notice to the Administrator of every action re- modifications necessary so that such State lated to the consideration of such permit appli- may resubmit such program for a determina- cation, including each permit proposed to be is- tion by the Administrator under this sub- sued by such State, and (2) a copy of each pro- section. posed general permit which such State intends (3) If the Administrator fails to make a deter- to issue. Not later than the tenth day after the mination with respect to any program submit- date of the receipt of such permit application or ted by a State under subsection (g)(1) of this sec- such proposed general permit, the Adminis- tion within one-hundred-twenty days after the trator shall provide copies of such permit appli- date of the receipt of such program, such pro- cation or such proposed general permit to the gram shall be deemed approved pursuant to Secretary and the Secretary of the Interior, act- paragraph (2)(A) of this subsection and the Ad- ing through the Director of the United States ministrator shall so notify such State and the Fish and Wildlife Service. If the Administrator Secretary who, upon subsequent notification intends to provide written comments to such from such State that it is administering such State with respect to such permit application or program, shall suspend the issuance of permits such proposed general permit, he shall so notify under subsection (a) and (e) of this section for such State not later than the thirtieth day after activities with respect to which a permit may be the date of the receipt of such application or issued by such State. such proposed general permit and provide such (4) After the Secretary receives notification written comments to such State, after consider- from the Administrator under paragraph (2) or ation of any comments made in writing with re- (3) of this subsection that a State permit pro- spect to such application or such proposed gen- gram has been approved, the Secretary shall eral permit by the Secretary and the Secretary transfer any applications for permits pending of the Interior, acting through the Director of before the Secretary for activities with respect the United States Fish and Wildlife Service, not to which a permit may be issued pursuant to later than the ninetieth day after the date of such State program to such State for appro- such receipt. If such State is so notified by the priate action. Administrator, it shall not issue the proposed (5) Upon notification from a State with a per- permit until after the receipt of such comments mit program approved under this subsection from the Administrator, or after such ninetieth that such State intends to administer and en- day, whichever first occurs. Such State shall not force the terms and conditions of a general per- issue such proposed permit after such ninetieth mit issued by the Secretary under subsection (e) day if it has received such written comments in of this section with respect to activities in such which the Administrator objects (A) to the issu- State to which such general permit applies, the ance of such proposed permit and such proposed Secretary shall suspend the administration and permit is one that has been submitted to the Ad- enforcement of such general permit with respect ministrator pursuant to subsection (h)(1)(E) of to such activities. this section, or (B) to the issuance of such pro- posed permit as being outside the requirements (i) Withdrawal of approval of this section, including, but not limited to, the Whenever the Administrator determines after guidelines developed under subsection (b)(1) of public hearing that a State is not administering this section unless it modifies such proposed § 1344 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 478 permit in accordance with such comments. (p) Compliance Whenever the Administrator objects to the issu- Compliance with a permit issued pursuant to ance of a permit under the preceding sentence this section, including any activity carried out such written objection shall contain a state- pursuant to a general permit issued under this ment of the reasons for such objection and the section, shall be deemed compliance, for pur- conditions which such permit would include if it poses of sections 1319 and 1365 of this title, with were issued by the Administrator. In any case sections 1311, 1317, and 1343 of this title. where the Administrator objects to the issuance (q) Minimization of duplication, needless paper- of a permit, on request of the State, a public work, and delays in issuance; agreements hearing shall be held by the Administrator on such objection. If the State does not resubmit Not later than the one-hundred-eightieth day such permit revised to meet such objection after December 27, 1977, the Secretary shall within 30 days after completion of the hearing enter into agreements with the Administrator, or, if no hearing is requested within 90 days the Secretaries of the Departments of Agri- after the date of such objection, the Secretary culture, Commerce, Interior, and Transpor- may issue the permit pursuant to subsection (a) tation, and the heads of other appropriate Fed- or (e) of this section, as the case may be, for eral agencies to minimize, to the maximum ex- such source in accordance with the guidelines tent practicable, duplication, needless paper- and requirements of this chapter. work, and delays in the issuance of permits under this section. Such agreements shall be de- (k) Waiver veloped to assure that, to the maximum extent In accordance with guidelines promulgated practicable, a decision with respect to an appli- pursuant to subsection (i)(2) of section 1314 of cation for a permit under subsection (a) of this this title, the Administrator is authorized to section will be made not later than the nine- waive the requirements of subsection (j) of this tieth day after the date the notice for such ap- section at the time of the approval of a program plication is published under subsection (a) of pursuant to subsection (h)(2)(A) of this section this section. for any category (including any class, type, or (r) Federal projects specifically authorized by size within such category) of discharge within Congress the State submitting such program. l The discharge of dredged or fill material as ( ) Categories of discharges not subject to re- part of the construction of a Federal project spe- quirements cifically authorized by Congress, whether prior The Administrator shall promulgate regula- to or on or after December 27, 1977, is not prohib- tions establishing categories of discharges which ited by or otherwise subject to regulation under he determines shall not be subject to the re- this section, or a State program approved under quirements of subsection (j) of this section in this section, or section 1311(a) or 1342 of this any State with a program approved pursuant to title (except for effluent standards or prohibi- subsection (h)(2)(A) of this section. The Admin- tions under section 1317 of this title), if informa- istrator may distinguish among classes, types, tion on the effects of such discharge, including and sizes within any category of discharges. consideration of the guidelines developed under (m) Comments on permit applications or pro- subsection (b)(1) of this section, is included in an posed general permits by Secretary of the In- environmental impact statement for such terior acting through Director of United project pursuant to the National Environmental States Fish and Wildlife Service Policy Act of 1969 [42 U.S.C. 4321 et seq.] and Not later than the ninetieth day after the date such environmental impact statement has been on which the Secretary notifies the Secretary of submitted to Congress before the actual dis- the Interior, acting through the Director of the charge of dredged or fill material in connection United States Fish and Wildlife Service that (1) with the construction of such project and prior an application for a permit under subsection (a) to either authorization of such project or an ap- of this section has been received by the Sec- propriation of funds for such construction. retary, or (2) the Secretary proposes to issue a (s) Violation of permits general permit under subsection (e) of this sec- (1) Whenever on the basis of any information tion, the Secretary of the Interior, acting available to him the Secretary finds that any through the Director of the United States Fish person is in violation of any condition or limita- and Wildlife Service, shall submit any com- tion set forth in a permit issued by the Sec- ments with respect to such application or such retary under this section, the Secretary shall proposed general permit in writing to the Sec- issue an order requiring such person to comply retary. with such condition or limitation, or the Sec- (n) Enforcement authority not limited retary shall bring a civil action in accordance with paragraph (3) of this subsection. Nothing in this section shall be construed to (2) A copy of any order issued under this sub- limit the authority of the Administrator to take section shall be sent immediately by the Sec- action pursuant to section 1319 of this title. retary to the State in which the violation occurs o ( ) Public availability of permits and permit ap- and other affected States. Any order issued plications under this subsection shall be by personal serv- A copy of each permit application and each ice and shall state with reasonable specificity permit issued under this section shall be avail- the nature of the violation, specify a time for able to the public. Such permit application or compliance, not to exceed thirty days, which the portion thereof, shall further be available on re- Secretary determines is reasonable, taking into quest for the purpose of reproduction. account the seriousness of the violation and any Page 479 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1344 good faith efforts to comply with applicable re- ‘‘(A) Any person who willfully or negligently violates quirements. In any case in which an order under any condition or limitation in a permit issued by the this subsection is issued to a corporation, a copy Secretary under this section shall be punished by a fine of such order shall be served on any appropriate of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one corporate officers. year, or by both. If the conviction is for a violation (3) The Secretary is authorized to commence a committed after a first conviction of such person under civil action for appropriate relief, including a this paragraph, punishment shall be by a fine of not permanent or temporary injunction for any vio- more than $50,000 per day of violation, or by imprison- lation for which he is authorized to issue a com- ment for not more than two years, or by both. pliance order under paragraph (1) of this sub- ‘‘(B) For the purposes of this paragraph, the term section. Any action under this paragraph may be ‘person’ shall mean, in addition to the definition con- brought in the district court of the United tained in section 1362(5) of this title, any responsible States for the district in which the defendant is corporate officer.’’ located or resides or is doing business, and such 1977—Subsec. (a). Pub. L. 95–217, § 67(a)(1), substituted ‘‘The Secretary’’ for ‘‘The Secretary of the Army, act- court shall have jurisdiction to restrain such ing through the Chief of Engineers,’’ and inserted pro- violation and to require compliance. Notice of vision that, not later than the fifteenth day after the the commencement of such acton 1 shall be given date an applicant submits all the information required immediately to the appropriate State. to complete an application for a permit under this sub- (4) Any person who violates any condition or section, the Secretary publish the notice required by limitation in a permit issued by the Secretary this subsection. under this section, and any person who violates Subsecs. (b), (c). Pub. L. 95–217, § 67(a)(2), substituted any order issued by the Secretary under para- ‘‘the Secretary’’ for ‘‘the Secretary of the Army’’. graph (1) of this subsection, shall be subject to Subsecs. (d) to (t). Pub. L. 95–217, § 67(b), added sub- secs. (d) to (t). a civil penalty not to exceed $25,000 per day for each violation. In determining the amount of a TRANSFER OF FUNCTIONS civil penalty the court shall consider the seri- For transfer of authorities, functions, personnel, and ousness of the violation or violations, the eco- assets of the Coast Guard, including the authorities nomic benefit (if any) resulting from the viola- and functions of the Secretary of Transportation relat- tion, any history of such violations, any good- ing thereto, to the Department of Homeland Security, faith efforts to comply with the applicable re- and for treatment of related references, see sections quirements, the economic impact of the penalty 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- on the violator, and such other matters as jus- rity, and the Department of Homeland Security Reor- tice may require. ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. (t) Navigable waters within State jurisdiction Enforcement functions of Administrator or other offi- Nothing in this section shall preclude or deny cial of the Environmental Protection Agency and of the right of any State or interstate agency to Secretary or other official in Department of the Inte- control the discharge of dredged or fill material rior relating to review of the Corps of Engineers’ dredged and fill material permits and such functions of in any portion of the navigable waters within Secretary of the Army, Chief of Engineers, or other of- the jurisdiction of such State, including any ac- ficial in Corps of Engineers of the United States Army tivity of any Federal agency, and each such relating to compliance with dredged and fill material agency shall comply with such State or inter- permits issued under this section with respect to pre- state requirements both substantive and proce- construction, construction, and initial operation of dural to control the discharge of dredged or fill transportation system for Canadian and Alaskan natu- material to the same extent that any person is ral gas were transferred to the Federal Inspector, Office subject to such requirements. This section shall of Federal Inspector for the Alaska Natural Gas Trans- portation System, until the first anniversary of the not be construed as affecting or impairing the date of initial operation of the Alaska Natural Gas authority of the Secretary to maintain naviga- Transportation System, see Reorg. Plan No. 1 of 1979, tion. §§ 102(a), (b), (e), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, (June 30, 1948, ch. 758, title IV, § 404, as added 1376, effective July 1, 1979, set out in the Appendix to Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 884; Title 5, Government Organization and Employees. Of- fice of Federal Inspector for the Alaska Natural Gas amended Pub. L. 95–217, § 67(a), (b), Dec. 27, 1977, Transportation System abolished and functions and au- 91 Stat. 1600; Pub. L. 100–4, title III, § 313(d), Feb. thority vested in Inspector transferred to Secretary of 4, 1987, 101 Stat. 45.) Energy by section 3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal Inspector note under REFERENCES IN TEXT section 719e of Title 15, Commerce and Trade. Func- The National Environmental Policy Act of 1969, re- tions and authority vested in Secretary of Energy sub- ferred to in subsec. (r), is Pub. L. 91–190, Jan. 1, 1970, 83 sequently transferred to Federal Coordinator for Alas- Stat. 852, as amended, which is classified generally to ka Natural Gas Transportation Projects by section chapter 55 (§ 4321 et seq.) of Title 42, The Public Health 720d(f) of Title 15. and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section MITIGATION AND MITIGATION BANKING REGULATIONS 4321 of Title 42 and Tables. Pub. L. 108–136, div. A, title III, § 314(b), Nov. 24, 2003, AMENDMENTS 117 Stat. 1431, provided that: ‘‘(1) To ensure opportunities for Federal agency par- 1987—Subsec. (s). Pub. L. 100–4 redesignated par. (5) as ticipation in mitigation banking, the Secretary of the (4), substituted ‘‘$25,000 per day for each violation’’ for Army, acting through the Chief of Engineers, shall ‘‘$10,000 per day of such violation’’, inserted provision issue regulations establishing performance standards specifying factors to consider in determining the pen- and criteria for the use, consistent with section 404 of alty amount, and struck out former par. (4) which read the Federal Water Pollution Control Act (33 U.S.C. as follows: 1344), of on-site, off-site, and in-lieu fee mitigation and mitigation banking as compensation for lost wetlands 1 So in original. Probably should be ‘‘action’’. functions in permits issued by the Secretary of the § 1345 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 480

Army under such section. To the maximum extent neers, is authorized to delegate to the State of Wash- practicable, the regulatory standards and criteria shall ington upon its request all or any part of those func- maximize available credits and opportunities for miti- tions vested in such Secretary by section 404 of the gation, provide flexibility for regional variations in Federal Water Pollution Control Act [this section] and wetland conditions, functions and values, and apply by sections 9, 10, and 13 of the Act of March 3, 1899 [sec- equivalent standards and criteria to each type of com- tions 401, 403, and 407 of this title], relating to Lake pensatory mitigation. Chelan, Washington, if the Secretary determines (1) ‘‘(2) Final regulations shall be issued not later than that such State has the authority, responsibility, and two years after the date of the enactment of this Act capability to carry out such functions, and (2) that [Nov. 24, 2003].’’ such delegation is in the public interest. Such delega- REGULATORY PROGRAM tion shall be subject to such terms and conditions as the Secretary deems necessary, including, but not lim- Pub. L. 106–377, § 1(a)(2) [title I], Oct. 27, 2000, 114 Stat. ited to, suspension and revocation for cause of such 1441, 1441A–63, provided in part that: ‘‘For expenses nec- delegation.’’ essary for administration of laws pertaining to regula- tion of navigable waters and wetlands, $125,000,000, to CONTIGUOUS ZONE OF UNITED STATES remain available until expended: Provided, That the For extension of contiguous zone of United States, Secretary of the Army, acting through the Chief of En- see Proc. No. 7219, set out as a note under section 1331 gineers, is directed to use funds appropriated herein to: of Title 43, Public Lands. (1) by March 1, 2001, supplement the report, Cost Analy- sis For the 1999 Proposal to Issue and Modify Nation- § 1345. Disposal or use of sewage sludge wide Permits, to reflect the Nationwide Permits actu- ally issued on March 9, 2000, including changes in the (a) Permit acreage limits, preconstruction notification require- Notwithstanding any other provision of this ments and general conditions between the rule pro- posed on July 21, 1999, and the rule promulgated and chapter or of any other law, in any case where published in the Federal Register; (2) after consider- the disposal of sewage sludge resulting from the ation of the cost analysis for the 1999 proposal to issue operation of a treatment works as defined in and modify nationwide permits and the supplement section 1292 of this title (including the removal prepared pursuant to this Act [H.R. 5483, as enacted by of in-place sewage sludge from one location and section 1(a)(2) of Pub. L. 106–377, see Tables for classi- its deposit at another location) would result in fication] and by September 30, 2001, prepare, submit to any pollutant from such sewage sludge entering Congress and publish in the Federal Register a Permit the navigable waters, such disposal is prohibited Processing Management Plan by which the Corps of En- gineers will handle the additional work associated with except in accordance with a permit issued by the all projected increases in the number of individual per- Administrator under section 1342 of this title. mit applications and preconstruction notifications re- (b) Issuance of permit; regulations lated to the new and replacement permits and general conditions. The Permit Processing Management Plan The Administrator shall issue regulations gov- shall include specific objective goals and criteria by erning the issuance of permits for the disposal of which the Corps of Engineers’ progress towards reduc- sewage sludge subject to subsection (a) of this ing any permit backlog can be measured; (3) beginning section and section 1342 of this title. Such regu- on December 31, 2001, and on a biannual basis there- lations shall require the application to such dis- after, report to Congress and publish in the Federal posal of each criterion, factor, procedure, and Register, an analysis of the performance of its program requirement applicable to a permit issued under as measured against the criteria set out in the Permit Processing Management Plan; (4) implement a 1-year section 1342 of this title. pilot program to publish quarterly on the U.S. Army (c) State permit program Corps of Engineer’s Regulatory Program website all Each State desiring to administer its own per- Regulatory Analysis and Management Systems (RAMS) mit program for disposal of sewage sludge sub- data for the South Pacific Division and North Atlantic Division beginning within 30 days of the enactment of ject to subsection (a) of this section within its this Act [Oct. 27, 2000]; and (5) publish in Division Office jurisdiction may do so in accordance with sec- websites all findings, rulings, and decisions rendered tion 1342 of this title. under the administrative appeals process for the Corps (d) Regulations of Engineers Regulatory Program as established in Public Law 106–60 [113 Stat. 486]: Provided further, That, (1) Regulations through the period ending on September 30, 2003, the The Administrator, after consultation with Corps of Engineers shall allow any appellant to keep a appropriate Federal and State agencies and verbatim record of the proceedings of the appeals con- other interested persons, shall develop and ference under the aforementioned administrative ap- publish, within one year after December 27, peals process: Provided further, That within 30 days of the enactment of this Act, the Secretary of the Army, 1977, and from time to time thereafter, regula- acting through the Chief of Engineers, shall require all tions providing guidelines for the disposal of U.S. Army Corps of Engineers Divisions and Districts sludge and the utilization of sludge for various to record the date on which a section 404 individual per- purposes. Such regulations shall— mit application or nationwide permit notification is (A) identify uses for sludge, including dis- filed with the Corps of Engineers: Provided further, That posal; the Corps of Engineers, when reporting permit process- (B) specify factors to be taken into ac- ing times, shall track both the date a permit applica- count in determining the measures and prac- tion is first received and the date the application is considered complete, as well as the reason that the ap- tices applicable to each such use or disposal plication is not considered complete upon first submis- (including publication of information on sion.’’ costs); (C) identify concentrations of pollutants AUTHORITY TO DELEGATE TO STATE OF WASHINGTON which interfere with each such use or dis- FUNCTIONS OF THE SECRETARY RELATING TO LAKE CHELAN, WASHINGTON posal. Section 76 of Pub. L. 95–217 provided that: ‘‘The Sec- The Administrator is authorized to revise any retary of the Army, acting through the Chief of Engi- regulation issued under this subsection. Corps of Engineers, Dept. of the Army, DoD § 332.2

404(b)(1) Guidelines compliance anal- § 332.2 Definitions. ysis, the district engineer may deter- For the purposes of this part, the fol- mine that a DA permit for the proposed lowing terms are defined: activity cannot be issued because of Adaptive management means the de- the lack of appropriate and practicable velopment of a management strategy compensatory mitigation options. that anticipates likely challenges asso- (d) Public interest. Compensatory ciated with compensatory mitigation mitigation may also be required to en- projects and provides for the imple- sure that an activity requiring author- mentation of actions to address those ization under section 404 of the Clean challenges, as well as unforeseen Water Act and/or sections 9 or 10 of the changes to those projects. It requires Rivers and Harbors Act of 1899 is not consideration of the risk, uncertainty, contrary to the public interest. and dynamic nature of compensatory (e) Accounting for regional variations. mitigation projects and guides modi- Where appropriate, district engineers fication of those projects to optimize shall account for regional characteris- performance. It includes the selection tics of aquatic resource types, func- of appropriate measures that will en- tions and services when determining sure that the aquatic resource func- tions are provided and involves anal- performance standards and monitoring ysis of monitoring results to identify requirements for compensatory mitiga- potential problems of a compensatory tion projects. mitigation project and the identifica- (f) Relationship to other guidance docu- tion and implementation of measures ments. (1) This part applies instead of to rectify those problems. the ‘‘Federal Guidance for the Estab- Advance credits means any credits of lishment, Use, and Operation of Mitiga- an approved in-lieu fee program that tion Banks,’’ which was issued on No- are available for sale prior to being ful- vember 28, 1995, the ‘‘Federal Guidance filled in accordance with an approved on the Use of In-Lieu Fee Arrange- mitigation project plan. Advance cred- ments for Compensatory Mitigation it sales require an approved in-lieu fee Under Section 404 of the Clean Water program instrument that meets all ap- Act and Section 10 of the Rivers and plicable requirements including a spe- Harbors Act,’’ which was issued on No- cific allocation of advance credits, by vember 7, 2000, and Regulatory Guid- service area where applicable. The in- ance Letter 02–02, ‘‘Guidance on Com- strument must also contain a schedule pensatory Mitigation Projects for for fulfillment of advance credit sales. Aquatic Resource Impacts Under the Buffer means an upland, wetland, Corps Regulatory Program Pursuant to and/or riparian area that protects and/ Section 404 of the Clean Water Act and or enhances aquatic resource functions Section 10 of the Rivers and Harbors associated with wetlands, rivers, Act of 1899’’ which was issued on De- streams, lakes, marine, and estuarine systems from disturbances associated cember 24, 2002. These guidance docu- with adjacent land uses. ments are no longer to be used as com- Compensatory mitigation means the pensatory mitigation policy in the restoration (re-establishment or reha- Corps Regulatory Program. bilitation), establishment (creation), (2) In addition, this part also applies enhancement, and/or in certain cir- instead of the provisions relating to cumstances preservation of aquatic re- the amount, type, and location of com- sources for the purposes of offsetting pensatory mitigation projects, includ- unavoidable adverse impacts which re- ing the use of preservation, in the Feb- main after all appropriate and prac- ruary 6, 1990, Memorandum of Agree- ticable avoidance and minimization ment (MOA) between the Department has been achieved. of the Army and the Environmental Compensatory mitigation project means Protection Agency on the Determina- compensatory mitigation implemented tion of Mitigation Under the Clean by the permittee as a requirement of a Water Act Section 404(b)(1) Guidelines. DA permit (i.e., permittee-responsible All other provisions of this MOA re- mitigation), or by a mitigation bank or main in effect. an in-lieu fee program.

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Condition means the relative ability filled, an equal number of new advance of an aquatic resource to support and credits is restored to the program spon- maintain a community of organisms sor for sale or transfer to permit appli- having a species composition, diver- cants. sity, and functional organization com- Functional capacity means the degree parable to reference aquatic resources to which an area of aquatic resource in the region. performs a specific function. Credit means a unit of measure (e.g., Functions means the physical, chem- a functional or areal measure or other ical, and biological processes that suitable metric) representing the ac- occur in ecosystems. crual or attainment of aquatic func- Impact means adverse effect. tions at a compensatory mitigation In-kind means a resource of a similar site. The measure of aquatic functions structural and functional type to the is based on the resources restored, es- impacted resource. tablished, enhanced, or preserved. In-lieu fee program means a program DA means Department of the Army. involving the restoration, establish- Days means calendar days. ment, enhancement, and/or preserva- Debit means a unit of measure (e.g., a tion of aquatic resources through funds functional or areal measure or other paid to a governmental or non-profit suitable metric) representing the loss natural resources management entity of aquatic functions at an impact or to satisfy compensatory mitigation re- project site. The measure of aquatic quirements for DA permits. Similar to functions is based on the resources im- a mitigation bank, an in-lieu fee pro- pacted by the authorized activity. gram sells compensatory mitigation Enhancement means the manipulation credits to permittees whose obligation of the physical, chemical, or biological to provide compensatory mitigation is characteristics of an aquatic resource then transferred to the in-lieu program to heighten, intensify, or improve a sponsor. However, the rules governing specific aquatic resource function(s). the operation and use of in-lieu fee pro- Enhancement results in the gain of se- grams are somewhat different from the lected aquatic resource function(s), but rules governing operation and use of may also lead to a decline in other mitigation banks. The operation and aquatic resource function(s). Enhance- use of an in-lieu fee program are gov- ment does not result in a gain in erned by an in-lieu fee program instru- aquatic resource area. ment. Establishment (creation) means the In-lieu fee program instrument means manipulation of the physical, chem- the legal document for the establish- ical, or biological characteristics ment, operation, and use of an in-lieu present to develop an aquatic resource fee program. that did not previously exist at an up- Instrument means mitigation banking land site. Establishment results in a instrument or in-lieu fee program in- gain in aquatic resource area and func- strument. tions. Interagency Review Team (IRT) means Fulfillment of advance credit sales of an an interagency group of federal, tribal, in-lieu fee program means application of state, and/or local regulatory and re- credits released in accordance with a source agency representatives that re- credit release schedule in an approved views documentation for, and advises mitigation project plan to satisfy the the district engineer on, the establish- mitigation requirements represented ment and management of a mitigation by the advance credits. Only after any bank or an in-lieu fee program. advance credit sales within a service Mitigation bank means a site, or suite area have been fulfilled through the ap- of sites, where resources (e.g., wet- plication of released credits from an in- lands, streams, riparian areas) are re- lieu fee project (in accordance with the stored, established, enhanced, and/or credit release schedule for an approved preserved for the purpose of providing mitigation project plan), may addi- compensatory mitigation for impacts tional released credits from that authorized by DA permits. In general, a project be sold or transferred to per- mitigation bank sells compensatory mittees. When advance credits are ful- mitigation credits to permittees whose

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obligation to provide compensatory regional class of aquatic resources as a mitigation is then transferred to the result of natural processes and anthro- mitigation bank sponsor. The oper- pogenic disturbances. ation and use of a mitigation bank are Rehabilitation means the manipula- governed by a mitigation banking in- tion of the physical, chemical, or bio- strument. logical characteristics of a site with Mitigation banking instrument means the goal of repairing natural/historic the legal document for the establish- functions to a degraded aquatic re- ment, operation, and use of a mitiga- source. Rehabilitation results in a gain tion bank. in aquatic resource function, but does Off-site means an area that is neither not result in a gain in aquatic resource located on the same parcel of land as area. the impact site, nor on a parcel of land Release of credits means a determina- contiguous to the parcel containing the tion by the district engineer, in con- impact site. sultation with the IRT, that credits as- On-site means an area located on the sociated with an approved mitigation same parcel of land as the impact site, plan are available for sale or transfer, or on a parcel of land contiguous to the or in the case of an in-lieu fee program, impact site. for fulfillment of advance credit sales. Out-of-kind means a resource of a dif- A proportion of projected credits for a ferent structural and functional type specific mitigation bank or in-lieu fee from the impacted resource. project may be released upon approval Performance standards are observable of the mitigation plan, with additional or measurable physical (including credits released as milestones specified hydrological), chemical and/or biologi- in the credit release schedule are cal attributes that are used to deter- achieved. mine if a compensatory mitigation Restoration means the manipulation project meets its objectives. of the physical, chemical, or biological Permittee-responsible mitigation means characteristics of a site with the goal an aquatic resource restoration, estab- of returning natural/historic functions lishment, enhancement, and/or preser- to a former or degraded aquatic re- vation activity undertaken by the per- source. For the purpose of tracking net mittee (or an authorized agent or con- gains in aquatic resource area, restora- tractor) to provide compensatory miti- tion is divided into two categories: re- gation for which the permittee retains establishment and rehabilitation. full responsibility. Preservation means the removal of a Riparian areas are lands adjacent to threat to, or preventing the decline of, streams, rivers, lakes, and estuarine- aquatic resources by an action in or marine shorelines. Riparian areas pro- near those aquatic resources. This vide a variety of ecological functions term includes activities commonly as- and services and help improve or main- sociated with the protection and main- tain local water quality. tenance of aquatic resources through Service area means the geographic the implementation of appropriate area within which impacts can be miti- legal and physical mechanisms. Preser- gated at a specific mitigation bank or vation does not result in a gain of an in-lieu fee program, as designated in aquatic resource area or functions. its instrument. Re-establishment means the manipula- Services mean the benefits that tion of the physical, chemical, or bio- human populations receive from func- logical characteristics of a site with tions that occur in ecosystems. the goal of returning natural/historic Sponsor means any public or private functions to a former aquatic resource. entity responsible for establishing, and Re-establishment results in rebuilding in most circumstances, operating a a former aquatic resource and results mitigation bank or in-lieu fee program. in a gain in aquatic resource area and Standard permit means a standard, in- functions. dividual permit issued under the au- Reference aquatic resources are a set of thority of section 404 of the Clean aquatic resources that represent the Water Act and/or sections 9 or 10 of the full range of variability exhibited by a Rivers and Harbors Act of 1899.

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Temporal loss is the time lag between § 332.3 General compensatory mitiga- the loss of aquatic resource functions tion requirements. caused by the permitted impacts and (a) General considerations. (1) The fun- the replacement of aquatic resource damental objective of compensatory functions at the compensatory mitiga- mitigation is to offset environmental tion site. Higher compensation ratios losses resulting from unavoidable im- may be required to compensate for pacts to waters of the United States temporal loss. When the compensatory authorized by DA permits. The district mitigation project is initiated prior to, engineer must determine the compen- or concurrent with, the permitted im- satory mitigation to be required in a pacts, the district engineer may deter- DA permit, based on what is prac- mine that compensation for temporal ticable and capable of compensating loss is not necessary, unless the re- for the aquatic resource functions that source has a long development time. will be lost as a result of the permitted Watershed means a land area that drains to a common waterway, such as activity. When evaluating compen- a stream, lake, estuary, wetland, or ul- satory mitigation options, the district timately the ocean. engineer will consider what would be Watershed approach means an analyt- environmentally preferable. In making ical process for making compensatory this determination, the district engi- mitigation decisions that support the neer must assess the likelihood for eco- sustainability or improvement of logical success and sustainability, the aquatic resources in a watershed. It in- location of the compensation site rel- volves consideration of watershed ative to the impact site and their sig- needs, and how locations and types of nificance within the watershed, and the compensatory mitigation projects ad- costs of the compensatory mitigation dress those needs. A landscape perspec- project. In many cases, the environ- tive is used to identify the types and mentally preferable compensatory locations of compensatory mitigation mitigation may be provided through projects that will benefit the watershed mitigation banks or in-lieu fee pro- and offset losses of aquatic resource grams because they usually involve functions and services caused by activi- consolidating compensatory mitigation ties authorized by DA permits. The wa- projects where ecologically appro- tershed approach may involve consider- priate, consolidating resources, pro- ation of landscape scale, historic and viding financial planning and scientific potential aquatic resource conditions, expertise (which often is not practical past and projected aquatic resource im- for permittee-responsible compen- pacts in the watershed, and terrestrial satory mitigation projects), reducing connections between aquatic resources temporal losses of functions, and re- when determining compensatory miti- ducing uncertainty over project suc- gation requirements for DA permits. cess. Compensatory mitigation require- Watershed plan means a plan devel- ments must be commensurate with the oped by federal, tribal, state, and/or amount and type of impact that is as- local government agencies or appro- sociated with a particular DA permit. priate non-governmental organiza- Permit applicants are responsible for tions, in consultation with relevant proposing an appropriate compensatory stakeholders, for the specific goal of mitigation option to offset unavoidable aquatic resource restoration, establish- impacts. ment, enhancement, and preservation. (2) Compensatory mitigation may be A watershed plan addresses aquatic re- performed using the methods of res- source conditions in the watershed, toration, enhancement, establishment, multiple stakeholder interests, and and in certain circumstances preserva- land uses. Watershed plans may also tion. Restoration should generally be identify priority sites for aquatic re- the first option considered because the source restoration and protection. Ex- likelihood of success is greater and the amples of watershed plans include spe- impacts to potentially ecologically im- cial area management plans, advance portant uplands are reduced compared identification programs, and wetland to establishment, and the potential management plans. gains in terms of aquatic resource

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Page 1589 TITLE 16—CONSERVATION § 1271

(d) Support for committee action Subsec. (b)(2) to (5). Pub. L. 104–59, § 337(e)(1)(B), (C), added par. (2) and redesignated former pars. (2) to (4) as Any action, recommendation, or policy of the (3) to (5), respectively. advisory committee must be supported by at Subsec. (c). Pub. L. 104–59, § 337(e)(2), substituted least five of the members appointed under sub- ‘‘(b)(3)’’ for ‘‘(b)(2)’’. section (b)(1) of this section. Subsec. (i). Pub. L. 104–59, § 325(h), substituted (e) Terms ‘‘Transportation and Infrastructure’’ for ‘‘Public Works and Transportation’’. Members of the advisory committee appointed by the Secretary shall be appointed for terms of CHAPTER 28—WILD AND SCENIC RIVERS three years, except that the members filling five of the eleven positions shall be initially ap- Sec. 1271. Congressional declaration of policy. pointed for terms of two years, with subsequent 1272. Congressional declaration of purpose. appointments to those positions extending for 1273. National wild and scenic rivers system. terms of three years. 1274. Component rivers and adjacent lands. (f) Duties 1275. Additions to national wild and scenic rivers system. The advisory committee shall meet at least 1276. Rivers constituting potential additions to na- twice annually to— tional wild and scenic rivers system. (1) review utilization of allocated moneys by 1277. Land acquisition. States; 1278. Restrictions on water resources projects. (2) establish and review criteria for trail-side 1279. Withdrawal of public lands from entry, sale, and trail-head facilities that qualify for fund- or other disposition under public land laws. ing under this chapter; and 1280. Federal mining and mineral leasing laws. (3) make recommendations to the Secretary 1281. Administration. 1282. Assistance to State and local projects. for changes in Federal policy to advance the 1283. Management policies. purposes of this chapter. 1284. Existing State jurisdiction and responsibil- (g) Annual report ities. The advisory committee shall present to the 1285. Claim and allowance of charitable deduction for contribution or gift of easement. Secretary an annual report on its activities. 1285a. Lease of Federal lands. (h) Reimbursement for expenses 1285b. Establishment of boundaries for certain com- Nongovernmental members of the advisory ponent rivers in Alaska; withdrawal of min- committee shall serve without pay, but, to the erals. 1286. Definitions. extent funds are available pursuant to section 1287. Authorization of appropriations. 1261(d)(1)(B) 1 of this title, shall be entitled to re- imbursement for travel, subsistence, and other § 1271. Congressional declaration of policy necessary expenses incurred in the performance of their duties. It is hereby declared to be the policy of the United States that certain selected rivers of the (i) Report to Congress Nation which, with their immediate environ- Not later than 4 years after December 18, 1991, ments, possess outstandingly remarkable scenic, the Secretary shall prepare and submit to the recreational, geologic, fish and wildlife, historic, Committee on Environment and Public Works of cultural, or other similar values, shall be pre- the Senate, and the Committee on Transpor- served in free-flowing condition, and that they tation and Infrastructure of the House of Rep- and their immediate environments shall be pro- resentatives, a study which summarizes the an- tected for the benefit and enjoyment of present nual reports of the National Recreational Trails and future generations. The Congress declares Advisory Committee, describes the allocation that the established national policy of dam and and utilization of moneys under this chapter, other construction at appropriate sections of and contains recommendations for changes in the rivers of the United States needs to be com- Federal policy to advance the purposes of this plemented by a policy that would preserve other chapter. selected rivers or sections thereof in their free- (j) Termination flowing condition to protect the water quality of The advisory committee established by this such rivers and to fulfill other vital national section shall terminate on September 30, 2000. conservation purposes. (Pub. L. 102–240, title I, § 1303, Dec. 18, 1991, 105 (Pub. L. 90–542, § 1(b), Oct. 2, 1968, 82 Stat. 906.) Stat. 2068; Pub. L. 104–59, title III, §§ 325(h), CODIFICATION 337(e), Nov. 28, 1995, 109 Stat. 592, 603; Pub. L. Section consists of subsec. (b) of section 1 of Pub. L. 105–178, title I, § 1112(d), June 9, 1998, 112 Stat. 90–542. Subsecs. (a) and (c) of section 1 are classified to 151.) section 1272 of this title and as a note under this sec- REFERENCES IN TEXT tion, respectively. Section 1261 of this title, referred to in subsec. (h), SHORT TITLE OF 2009 AMENDMENT was repealed by Pub. L. 105–178, title I, § 1112(c), June 9, Pub. L. 111–11, title V, § 5002(a), Mar. 30, 2009, 123 Stat. 1998, 112 Stat. 151. 1147, provided that: ‘‘This section [amending section AMENDMENTS 1274 of this title and enacting provisions classified as a note under section 1274 of this title] may be cited as the 1998—Subsec. (j). Pub. L. 105–178 added subsec. (j). ‘Craig Thomas Snake Headwaters Legacy Act of 2008’.’’ 1995—Subsec. (b). Pub. L. 104–59, § 337(e)(1)(A), sub- stituted ‘‘12’’ for ‘‘11’’ in introductory provisions. SHORT TITLE OF 2006 AMENDMENT Pub. L. 109–452, § 1, Dec. 22, 2006, 120 Stat. 3363, pro- 1 See References in Text note below. vided that: ‘‘This Act [amending section 1274 of this § 1271 TITLE 16—CONSERVATION Page 1590 title and enacting provisions classified as a note under SHORT TITLE OF 1992 AMENDMENTS section 1274 of this title] may be cited as the Pub. L. 102–275, § 1, Apr. 22, 1992, 106 Stat. 123, provided ‘Musconetcong Wild and Scenic Rivers Act’.’’ that: ‘‘This Act [amending section 1274 of this title and Pub. L. 109–370, § 1, Nov. 27, 2006, 120 Stat. 2643, pro- enacting provisions classified as a note under section vided that: ‘‘This Act [amending section 1276 of this 1274 of this title] may be cited as the ‘Arkansas Wild title] may be cited as the ‘Lower Farmington River and and Scenic Rivers Act of 1992’.’’ Salmon Brook Wild and Scenic River Study Act of Pub. L. 102–249, § 1, Mar. 3, 1992, 106 Stat. 45, provided 2005’.’’ that: ‘‘This Act [amending sections 1274 and 1276 of this SHORT TITLE OF 2005 AMENDMENT title and enacting provisions classified as a note under section 1274 of this title] may be cited as the ‘Michigan Pub. L. 109–44, § 1, Aug. 2, 2005, 119 Stat. 443, provided Scenic Rivers Act of 1991’.’’ that: ‘‘This Act [amending section 1274 of this title] may be cited as the ‘Upper White Salmon Wild and Sce- SHORT TITLE OF 1991 AMENDMENTS nic Rivers Act’.’’ Pub. L. 102–215, § 1, Dec. 11, 1991, 105 Stat. 1664, pro- SHORT TITLE OF 2002 AMENDMENT vided that: ‘‘This Act [amending section 1276 of this title] may be cited as the ‘White Clay Creek Study Pub. L. 107–365, § 1, Dec. 19, 2002, 116 Stat. 3027, pro- Act’.’’ vided that: ‘‘This Act [amending section 1274 of this Pub. L. 102–214, § 1, Dec. 11, 1991, 105 Stat. 1663, pro- title and enacting provisions classified as a note under vided that: ‘‘This Act [amending section 1276 of this section 1274 of this title] may be cited as the ‘Caribbean title] may be cited as the ‘Lamprey River Study Act of National Forest Wild and Scenic Rivers Act of 2002’.’’ 1991’.’’ SHORT TITLE OF 2001 AMENDMENT Pub. L. 102–50, § 1, May 24, 1991, 105 Stat. 254, provided that: ‘‘This Act [amending sections 1274 and 1276 of this Pub. L. 107–65, § 1, Nov. 6, 2001, 115 Stat. 484, provided title and enacting provisions classified as notes under that: ‘‘This Act [amending section 1276 of this title] sections 1a–5 and 1274 of this title] may be cited as the may be cited as the ‘Eightmile River Wild and Scenic ‘Niobrara Scenic River Designation Act of 1991’.’’ River Study Act of 2001’.’’ SHORT TITLE OF 1990 AMENDMENTS SHORT TITLE OF 2000 AMENDMENTS Pub. L. 101–628, title VII, § 701, Nov. 28, 1990, 104 Stat. Pub. L. 106–418, § 1, Nov. 1, 2000, 114 Stat. 1817, pro- 4497, provided that: ‘‘This title [amending section 1276 vided that: ‘‘This Act [amending section 1274 of this of this title] may be cited as the ‘Sudbury, Assabet, and title and enacting provisions classified as a note under Concord Wild and Scenic River Study Act’.’’ section 1274 of this title] may be cited as the ‘Lower Pub. L. 101–628, title XIII, § 1301, Nov. 28, 1990, 104 Delaware Wild and Scenic Rivers Act’.’’ Stat. 4509, provided that: ‘‘This Act [probably should be Pub. L. 106–357, § 1, Oct. 24, 2000, 114 Stat. 1393, pro- ‘‘this title’’, amending section 1274 of this title] may be vided that: ‘‘This Act [amending section 1274 of this cited as the ‘Clarks Fork Wild and Scenic River Des- title and enacting provisions classified as a note under ignation Act of 1990’.’’ section 1274 of this title] may be cited as the ‘White Pub. L. 101–357, § 1, Aug. 10, 1990, 104 Stat. 418, pro- Clay Creek Wild and Scenic Rivers System Act’.’’ vided that: ‘‘This Act [amending section 1276 of this Pub. L. 106–318, § 1, Oct. 19, 2000, 114 Stat. 1278, pro- title] may be cited as the ‘Pemigewasset River Study vided that: ‘‘This Act [amending section 1276 of this Act of 1989’.’’ title] may be cited as the ‘Taunton River Wild and Sce- Pub. L. 101–356, § 1, Aug. 10, 1990, 104 Stat. 417, pro- nic River Study Act of 2000’.’’ vided that: ‘‘This Act [amending section 1276 of this Pub. L. 106–299, § 1, Oct. 13, 2000, 114 Stat. 1050, pro- title] may be cited as the ‘Merrimack River Study Act vided that: ‘‘This Act [amending section 1274 of this of 1990’.’’ title and enacting provisions classified as a note under Pub. L. 101–306, § 1, June 6, 1990, 104 Stat. 260, provided section 1274 of this title] may be cited as the ‘Wekiva that: ‘‘This Act [amending section 1274 of this title] Wild and Scenic River Act of 2000’.’’ may be cited as the ‘East Fork of the Jemez River and Pub. L. 106–192, § 1, May 2, 2000, 114 Stat. 233, provided the Pecos River Wild and Scenic Rivers Addition Act of that: ‘‘This Act [amending section 1274 of this title and 1989’.’’ provisions classified as a note under section 1274 of this title] may be cited as the ‘Lamprey Wild and Scenic SHORT TITLE OF 1988 AMENDMENTS River Extension Act’.’’ Pub. L. 100–557, title I, § 101, Oct. 28, 1988, 102 Stat. SHORT TITLE OF 1999 AMENDMENT 2782, provided that: ‘‘This title [amending sections 1274 Pub. L. 106–20, § 1, Apr. 9, 1999, 113 Stat. 30, provided and 1276 of this title and enacting provisions classified that: ‘‘This Act [amending section 1274 of this title and as notes under section 1274 of this title] may be referred enacting provisions classified as a note under section to as the ‘Omnibus Oregon Wild and Scenic Rivers Act 1274 of this title] may be cited as the ‘Sudbury, of 1988’.’’ Assabet, and Concord Wild and Scenic River Act’.’’ Pub. L. 100–547, § 1, Oct. 28, 1988, 102 Stat. 2736, pro- vided: ‘‘That this Act [amending section 1274 of this SHORT TITLE OF 1994 AMENDMENTS title and enacting provisions listed in a table of Wilder- ness Areas set out under section 1132 of this title] may Pub. L. 103–313, § 1, Aug. 26, 1994, 108 Stat. 1699, pro- be cited as the ‘Sipsey Wild and Scenic River and Ala- vided that: ‘‘This Act [amending section 1274 of this bama Addition Act of 1988’.’’ title and enacting provisions classified as a note under section 1274 of this title] may be cited as the ‘Farming- SHORT TITLE OF 1986 AMENDMENT ton Wild and Scenic River Act’.’’ Pub. L. 103–242, § 1, May 4, 1994, 108 Stat. 611, provided Pub. L. 99–590, title II, § 201, Oct. 30, 1986, 100 Stat. that: ‘‘This Act [amending sections 1274 and 1276 of this 3332, provided that: ‘‘This title [amending section 1276 title and enacting provisions classified as a note under of this title] may be cited as the ‘Farmington Wild and section 1274 of this title] may be cited as the ‘Rio Scenic River Study Act’.’’ Grande Designation Act of 1994’.’’ SHORT TITLE OF 1972 AMENDMENT SHORT TITLE OF 1993 AMENDMENT Section 1 of Pub. L. 92–560, Oct. 25, 1972, 86 Stat. 1174, Pub. L. 103–170, § 1, Dec. 2, 1993, 107 Stat. 1986, provided provided: ‘‘That this Act [amending section 1274 of this that: ‘‘This Act [amending section 1274 of this title] title and enacting provisions classified as a note under may be cited as the ‘Red River Designation Act of section 1274 of this title] may be cited as the ‘Lower 1993’.’’ Saint Croix River Act of 1972’.’’ Page 1591 TITLE 16—CONSERVATION § 1274

SHORT TITLE (b) Classification, designation, and administra- Section 1(a) of Pub. L. 90–542 provided that: ‘‘This Act tion of rivers [enacting this chapter] may be cited as the ‘Wild and A wild, scenic or recreational river area eligi- Scenic Rivers Act’.’’ ble to be included in the system is a free-flowing stream and the related adjacent land area that § 1272. Congressional declaration of purpose possesses one or more of the values referred to The purpose of this chapter is to implement in section 1271 of this title. Every wild, scenic or the policy set out in section 1271 of this title by recreational river in its free-flowing condition, instituting a national wild and scenic rivers sys- or upon restoration to this condition, shall be tem, by designating the initial components of considered eligible for inclusion in the national that system, and by prescribing the methods by wild and scenic rivers system and, if included, which and standards according to which addi- shall be classified, designated, and administered tional components may be added to the system as one of the following: from time to time. (1) Wild river areas—Those rivers or sections of rivers that are free of impoundments and (Pub. L. 90–542, § 1(c), Oct. 2, 1968, 82 Stat. 906.) generally inaccessible except by trail, with watersheds or shorelines essentially primitive CODIFICATION and waters unpolluted. These represent ves- Section consists of subsec. (c) of section 1 of Pub. L. tiges of primitive America. 90–542. Subsecs. (a) and (b) of section 1 are classified to (2) Scenic river areas—Those rivers or sec- section 1271 and section 1271 note, respectively. tions of rivers that are free of impoundments, with shorelines or watersheds still largely § 1273. National wild and scenic rivers system primitive and shorelines largely undeveloped, (a) Composition; application; publication in Fed- but accessible in places by roads. eral Register; expense; administration of fed- (3) Recreational river areas—Those rivers or erally owned lands sections of rivers that are readily accessible by road or railroad, that may have some devel- The national wild and scenic rivers system opment along their shorelines, and that may shall comprise rivers (i) that are authorized for have undergone some impoundment or diver- inclusion therein by Act of Congress, or (ii) that sion in the past. are designated as wild, scenic or recreational rivers by or pursuant to an act of the legislature (Pub. L. 90–542, § 2, Oct. 2, 1968, 82 Stat. 906; Pub. of the State or States through which they flow, L. 94–407, § 1(1), Sept. 11, 1976, 90 Stat. 1238; Pub. that are to be permanently administered as L. 95–625, title VII, § 761, Nov. 10, 1978, 92 Stat. wild, scenic or recreational rivers by an agency 3533.) or political subdivision of the State or States REFERENCES IN TEXT concerned that are found by the Secretary of the The Land and Water Conservation Act of 1965, re- Interior, upon application of the Governor of the ferred to in subsec. (a), probably means the Land and State or the Governors of the States concerned, Water Conservation Fund Act of 1965, Pub. L. 88–578, or a person or persons thereunto duly appointed Sept. 3, 1964, 78 Stat. 897, as amended, which is classi- by him or them, to meet the criteria established fied generally to part B (§ 460l–4 et seq.) of subchapter in this chapter and such criteria supplementary LXIX of chapter 1 of this title. For complete classifica- thereto as he may prescribe, and that are ap- tion of this Act to the Code, see Short Title note set proved by him for inclusion in the system, in- out under section 460l–4 of this title and Tables. cluding, upon application of the Governor of the AMENDMENTS State concerned, the Allagash Wilderness Water- 1978—Subsec. (a). Pub. L. 95–625 provided for notifica- way, Maine; that segment of the Wolf River, tion of the Federal Energy Regulatory Commission and Wisconsin, which flows through Langlade Coun- publication of any application in the Federal Register; ty; and that segment of the New River in North made it an expense of the United States for administra- Carolina extending from its confluence with Dog tion and management of federally owned lands; treated Creek downstream approximately 26.5 miles to amounts available to the States under provisions of law the Virginia State line. Upon receipt of an appli- not as an expense of the United States; and made feder- ally owned lands within boundaries of State rivers free cation under clause (ii) of this subsection, the of ownership or administration of State or local au- Secretary shall notify the Federal Energy Regu- thority. latory Commission and publish such application 1976—Subsec. (a). Pub. L. 94–407 inserted provision for in the Federal Register. Each river designated inclusion of specified segment of New River in North under clause (ii) shall be administered by the Carolina. State or political subdivision thereof without § 1274. Component rivers and adjacent lands expense to the United States other than for ad- ministration and management of federally (a) Designation owned lands. For purposes of the preceding sen- The following rivers and the land adjacent tence, amounts made available to any State or thereto are hereby designated as components of political subdivision under the Land and Water the national wild and scenic rivers system: Conservation Act of 1965 [16 U.S.C. 460l–4 et seq.] (1) CLEARWATER, MIDDLE FORK, IDAHO—The or any other provision of law shall not be treat- Middle Fork from the town of Kooskia upstream ed as an expense to the United States. Nothing to the town of Lowell; the Lochsa River from its in this subsection shall be construed to provide junction with the Selway at Lowell forming the for the transfer to, or administration by, a State Middle Fork, upstream to the Powell Ranger or local authority of any federally owned lands Station; and the Selway River from Lowell up- which are within the boundaries of any river in- stream to its origin; to be administered by the cluded within the system under clause (ii). Secretary of Agriculture. § 1274 TITLE 16—CONSERVATION Page 1592

(2) ELEVENTH POINT, MISSOURI—The segment River; to be administered by the Secretary of of the river extending downstream from Thom- Agriculture. asville to State Highway 142; to be administered (8) WOLF, WISCONSIN—From the Langlade-Me- by the Secretary of Agriculture. nominee County line downstream to Keshena (3) FEATHER, CALIFORNIA—The entire Middle Falls; to be administered by the Secretary of the Fork downstream from the confluence of its Interior. tributary streams one kilometer south of (9) LOWER SAINT CROIX, MINNESOTA AND WIS- Beckwourth, California; to be administered by CONSIN—The segment between the dam near the Secretary of Agriculture. Taylors Falls and its confluence with the Mis- (4) RIO GRANDE, NEW MEXICO—The segment ex- sissippi River: Provided, (i) That the upper twen- tending from the Colorado State line down- ty-seven miles of this river segment shall be ad- stream to the State Highway 96 crossing, and ministered by the Secretary of the Interior; and the lower four miles of the Red River; to be ad- (ii) That the lower twenty-five miles shall be ministered by the Secretary of the Interior. designated by the Secretary upon his approval (5) ROGUE, OREGON—The segment of the river of an application for such designation made by extending from the mouth of the Applegate the Governors of the State of Minnesota and River downstream to the Lobster Creek Bridge; Wisconsin. to be administered by agencies of the Depart- (10) CHATTOOGA, NORTH CAROLINA, SOUTH CARO- ments of the Interior or Agriculture as agreed LINA, GEORGIA—The Segment from 0.8 mile upon by the Secretaries of said Departments or below Cashiers Lake in North Carolina to as directed by the President. Tugaloo Reservoir, and the West Fork (6) SAINT CROIX, MINNESOTA AND WISCONSIN— Chattooga River from its junction with The segment between the the dam near Taylors Falls, Minnesota, and the dam near Gordon, Chattooga upstream 7.3 miles, as generally de- Wisconsin, and its tributary, the Namekago, picted on the boundary map entitled ‘‘Proposed from Lake Namekago downstream to its con- Wild and Scenic Chattooga River and Corridor fluence with the Saint Croix; to be administered Boundary’’, dated August 1973; to be adminis- by the Secretary of the Interior: Provided, That tered by the Secretary of Agriculture: Provided, except as may be required in connection with That the Secretary of Agriculture shall take items (a) and (b) of this paragraph, no funds such action as is provided for under subsection available to carry out the provisions of this (b) of this section within one year from May 10, chapter may be expended for the acquisition or 1974: Provided further, That for the purposes of development of lands in connection with, or for this river, there are authorized to be appro- administration under this chapter of, that por- priated not more than $5,200,000 for the acquisi- tion of the Saint Croix River between the dam tion of lands and interests in lands and not more near Taylors Falls, Minnesota, and the up- than $809,000 for development. stream end of Big Island in Wisconsin, until (11) RAPID RIVER, IDAHO—The segment from sixty days after the date on which the Secretary the headwaters of the main stem to the national has transmitted to the President of the Senate forest boundary and the segment of the West and Speaker of the House of Representatives a Fork from the wilderness boundary downstream proposed cooperative agreement between the to the confluence with the main stem, as a wild Northern States Power Company and the United river. States (a) whereby the company agrees to con- (12) SNAKE, IDAHO AND OREGON—The segment vey to the United States, without charge, appro- from Hells Canyon Dam downstream to Pitts- priate interests in certain of its lands between burgh Landing, as a wild river; and the segment the dam near Taylors Falls, Minnesota, and the from Pittsburgh Landing downstream to an upstream end of Big Island in Wisconsin, includ- eastward extension of the north boundary of sec- ing the company’s right, title, and interest to tion 1, township 5 north, range 47 east, Willam- approximately one hundred acres per mile, and ette meridian, as a scenic river. (b) providing for the use and development of (13) FLATHEAD, MONTANA—The North Fork other lands and interests in land retained by the from the Canadian border downstream to its company between said points adjacent to the confluence with the Middle Fork; the Middle river in a manner which shall complement and Fork from its headwaters to its confluence to not be inconsistent with the purposes for which the South Fork; and the South Fork from its or- the lands and interests in land donated by the igin to the Hungry Horse Reservoir, as generally company are administered under this chapter. depicted on the map entitled ‘‘Proposed Flat- Said agreement may also include provision for head Wild and Scenic River Boundary Location’’ State or local governmental participation as au- dated February 1976; to be administered by agen- thorized under subsection (e) of section 1281 of cies of the Departments of the Interior and Agri- this title. A one-thousand-three-hundred-and- culture as agreed upon by the Secretaries of eighty-acre portion of the area commonly such Departments or as directed by the Presi- known as the Velie Estate, located adjacent to dent. Action required to be taken under sub- the Saint Croix River in Douglas County, Wis- section (b) of this section shall be taken within consin, as depicted on the map entitled ‘‘Bound- one year from October 12, 1976. For the purposes ary Map/Velie Estate—Saint Croix National Sce- of this river, there are authorized to be appro- nic Riverway’’, dated September 1980, and num- priated not more than $6,719,000 for the acquisi- bered 630–90,001, may be acquired by the Sec- tion of lands and interests in lands. No funds au- retary without regard to any acreage limitation thorized to be appropriated pursuant to this set forth in subsection (b) of this section or sub- paragraph shall be available prior to October 1, section (a) or (b) of section 1277 of this title. 1977. (7) SALMON, MIDDLE FORK, IDAHO—From its or- (14) MISSOURI, MONTANA—The segment from igin to its confluence with the main Salmon Fort Benton one hundred and forty-nine miles Page 1593 TITLE 16—CONSERVATION § 1274 downstream to Robinson Bridge, as generally age or destruction by reason of overuse and to depicted on the boundary map entitled ‘‘Mis- protect its scenic, historic, esthetic and sci- souri Breaks Freeflowing River Proposal’’, dated entific values. Such regulations shall further October 1975, to be administered by the Sec- contain procedures and means which shall be retary of the Interior. For the purposes of this utilized in the enforcement of such development river, there are authorized to be appropriated and management plan. For the purposes of car- not more than $1,800,000 for the acquisition of rying out the provisions of this chapter with re- lands and interests in lands. No funds authorized spect to the river designated by this paragraph, to be appropriated pursuant to this paragraph there are authorized to be appropriated not shall be available prior to October 1, 1977. more than $8,125,000 for the acquisition of lands (15) OBED, TENNESSEE—The segment from the or interests in lands and $402,000 for develop- western edge of the Catoosa Wildlife Manage- ment. Notwithstanding any other provision of ment Area to the confluence with the Emory this chapter, the installation and operation of River; Clear Creek from the Morgan County line facilities or other activities within or outside to the confluence with the Obed River, Daddys the boundaries of the Pere Marquette Wild and Creek from the Morgan County line to the con- Scenic River for the control of the lamprey eel fluence with the Obed River; and the Emory shall be permitted subject to such restrictions River from the confluence with the Obed River and conditions as the Secretary of Agriculture to the Nemo bridge as generally depicted and may prescribe for the protection of water qual- classified on the stream classification map ity and other values of the river, including the dated December 1973. The Secretary of the Inte- wild and scenic characteristics of the river. rior shall take such action, with the participa- (17) RIO GRANDE, TEXAS—The segment on the tion of the State of Tennessee as is provided for United States side of the river from river mile under subsection (b) of this section within one 842.3 above Mariscal Canyon downstream to year following October 12, 1976. The development river mile 651.1 at the Terrell-Val Verde County plan required by such subsection (b) shall in- line; to be administered by the Secretary of the clude cooperative agreements between the State Interior. The Secretary shall, within two years of Tennessee acting through the Wildlife Re- after November 10, 1978, take such action with sources Agency and the Secretary of the Inte- respect to the segment referred to in this para- rior. Lands within the Wild and Scenic River graph as is provided for under subsection (b) of boundaries that are currently part of the this section. The action required by such sub- Catoosa Wildlife Management Area shall con- section (b) shall be undertaken by the Sec- tinue to be owned and managed by the Ten- retary, after consultation with the United nessee Wildlife Resources Agency in such a way States Commissioner, International Boundary as to protect the wildlife resources and primi- and Water Commission, United States and Mex- tive character of the area, and without further ico, and appropriate officials of the State of development of roads, campsites, or associated Texas and its political subdivisions. The devel- recreational facilities unless deemed necessary opment plan required by subsection (b) of this by that agency for wildlife management prac- section shall be construed to be a general man- tices. The Obed Wild and Scenic River shall be agement plan only for the United States side of managed by the Secretary of the Interior. For the river and such plan shall include, but not be the purposes of carrying out the provisions of limited to, the establishment of a detailed this chapter with respect to this river, there are boundary which shall include an average of not authorized to be appropriated such sums as may more than 160 acres per mile. Nothing in this be necessary, but not to exceed $2,000,000 for the chapter shall be construed to be in conflict acquisition of lands or interests in lands and not with— to exceed $400,000 for development. No funds au- (A) the commitments or agreements of the thorized to be appropriated pursuant to this United States made by or in pursuance of the paragraph shall be available prior to October 1, treaty between the United States and Mexico 1977. regarding the utilization of the Colorado and (16) PERE MARQUETTE, MICHIGAN—The segment Tijuana Rivers and of the Rio Grande, signed downstream from the junction of the Middle and at Washington, February 1944 (59 Stat. 1219), or Little South Branches to its junction with (B) the treaty between the United States and United States Highway 31 as generally depicted Mexico regarding maintenance of the Rio on the boundary map entitled ‘‘Proposed Bound- Grande and Colorado River as the inter- ary Location, Pere Marquette Wild and Scenic national boundary between the United States River,’’; to be administered by the Secretary of and Mexico, signed November 23, 1970. Agriculture. After consultation with State and For purposes of carrying out the provisions of local governments and the interested public, the this chapter with respect to the river designated Secretary shall take such action as is provided by this paragraph, there are authorized to be ap- for under subsection (b) of this section with re- propriated such sums as may be necessary, but spect to the segment referred to in this para- not more than $1,650,000 for the acquisition of graph within one year from November 10, 1978. lands and interests in lands and not more than Any development or management plan prepared $1,800,000 for development. pursuant to subsection (b) of this section shall (18) SKAGIT, WASHINGTON—The segment from include (a) provisions for the dissemination of the pipeline crossing at Sedro-Woolley upstream information to river users and (b) such regula- to and including the mouth of Bacon Creek; the tions relating to the recreational and other uses Cascade River from its mouth to the junction of of the river as may be necessary in order to pro- its North and South Forks; the South Fork to tect the area comprising such river (including the boundary of the Glacier Peak Wilderness lands contiguous or adjacent thereto) from dam- Area; the Suiattle River from its mouth to the § 1274 TITLE 16—CONSERVATION Page 1594 boundary of the Glacier Peak Wilderness Area poses of carrying out this chapter with respect at Milk Creek; the Sauk River from its mouth to the river designated by this paragraph, there to its junction with Elliott Creek; the North are authorized to be appropriated such sums as Fork of the Sauk River from its junction with may be necessary. Action required to be taken the South Fork of the Sauk to the boundary of under subsection (b) of this section with respect the Glacier Peak Wilderness Area; as generally to such segment shall be taken within one year depicted on the boundary map entitled ‘‘Skagit from November 10, 1978, except that, with re- River—River Area Boundary’’; all segments to spect to such segment, in lieu of the boundaries be administered by the Secretary of Agriculture. provided for in such subsection (b), the bound- Riprapping related to natural channels with aries shall be the banks of the river. Any visi- natural rock along the shorelines of the Skagit tors facilities established for purposes of use and segment to preserve and protect agricultural enjoyment of the river under the authority of land shall not be considered inconsistent with the Act establishing the Delaware Water Gap the values for which such segment is designated. National Recreation Area [16 U.S.C. 460o et seq.] After consultation with affected Federal agen- shall be compatible with the purposes of this cies, State and local government and the inter- chapter and shall be located at an appropriate ested public, the Secretary shall take such ac- distance from the river. tion as is provided for under subsection (b) of (21) AMERICAN, CALIFORNIA—The North Fork this section with respect to the segments re- from a point 0.3 mile above Heath Springs down- ferred to in this paragraph within one year from stream to a point approximately 1,000 feet up- November 10, 1978; as part of such action, the stream of the Colfax-Iowa Hill Bridge, including Secretary of Agriculture shall investigate that the Gold Run Addition Area, as generally de- portion of the North Fork of the Cascade River picted on the map entitled ‘‘Proposed Boundary from its confluence with the South Fork to the Maps’’ contained in Appendix I of the document boundary of the North Cascades National Park dated January 1978 and entitled ‘‘A Proposal: and if such portion is found to qualify for inclu- North Fork American Wild and Scenic River’’ sion, it shall be treated as a component of the published by the United States Forest Service, Wild and Scenic Rivers System designated under Department of Agriculture; to be designated as this section upon publication by the Secretary a wild river and to be administered by agencies of notification to that effect in the Federal Reg- of the Departments of Interior and Agriculture ister. For the purposes of carrying out the provi- as agreed upon by the Secretaries of such De- sions of this chapter with respect to the river partments or as directed by the President. Ac- designated by this paragraph there are author- tion required to be taken under subsection (b) ized to be appropriated not more than $11,734,000 shall be taken within one year after November for the acquisition of lands or interest in lands 10, 1978; in applying such subsection (b) in the and not more than $332,000 for development. case of the Gold Run Addition Area, the acreage (19) UPPER DELAWARE RIVER, NEW YORK AND limitation specified therein shall not apply and PENNSYLVANIA—The segment of the Upper Dela- in applying section 1277(g)(3) of this title, Janu- ware River from the confluence of the East and ary 1, 1977 shall be substituted for January 1, West branches below Hancock, New York, to the 1967. For purposes of carrying out the provisions existing railroad bridge immediately down- of this chapter with respect to the river des- stream of Cherry Island in the vicinity of Spar- ignated by this paragraph, there are authorized row Bush, New York, as depicted on the bound- to be appropriated not more than $850,000 for the ary map entitled ‘‘The Upper Delaware Scenic acquisition of lands and interests in land and and Recreational River’’, dated April 1978; to be not more than $765,000 for development. administered by the Secretary of the Interior. (22) MISSOURI RIVER, NEBRASKA, SOUTH DA- Subsection (b) of this section shall not apply, KOTA—The segment from Gavins Point Dam, and the boundaries and classifications of the South Dakota, fifty-nine miles downstream to river shall be as specified on the map referred to Ponca State Park, Nebraska, as generally de- in the preceding sentence, except to the extent picted in the document entitled ‘‘Review Report that such boundaries or classifications are modi- for Water Resources Development, South Da- fied pursuant to section 704(c) of the National kota, Nebraska, North Dakota, Montana’’, pre- Parks and Recreation Act of 1978. Such bound- pared by the Division Engineer, Missouri River aries and classifications shall be published in Division, Corps of Engineers, dated August 1977 the Federal Register and shall not become effec- (hereinafter in this paragraph referred to as the tive until ninety days after they have been for- ‘‘August 1977 Report’’). Such segment shall be warded to the Committee on Natural Resources administered as a recreational river by the Sec- of the United States House of Representatives retary. The Secretary shall enter into a written and the Committee on Energy and Natural Re- cooperative agreement with the Secretary of the sources of the United States Senate. For pur- Army (acting through the Chief of Engineers) poses of carrying out the provisions of this chap- for construction and maintenance of bank sta- ter with respect to the river designated by this bilization work and appropriate recreational de- paragraph there are authorized to be appro- velopment. After public notice and consultation priated such sums as may be necessary. with the State and local governments, other in- (20) DELAWARE, NEW YORK, PENNSYLVANIA, AND terested organizations and associations, and the NEW JERSEY—The segment from the point where interested public, the Secretary shall take such the river crosses the northern boundary of the action as is required pursuant to subsection (b) Delaware Water Gap National Recreation Area of this section within one year from November to the point where the river crosses the southern 10, 1978. In administering such river, the Sec- boundary of such recreation area; to be adminis- retary shall, to the extent, and in a manner, tered by the Secretary of the Interior. For pur- consistent with this section— Page 1595 TITLE 16—CONSERVATION § 1274

(A) provide (i) for the construction by the (23) SAINT JOE, IDAHO—The segment above the United States of such recreation river features confluence of the North Fork of the Saint Joe and streambank stabilization structures as the River to Spruce Tree Campground, as a rec- Secretary of the Army (acting through the reational river; the segment above Spruce Tree Chief of Engineers) deems necessary and advis- Campground to Saint Joe Lake, as a wild river, able in connection with the segment des- as generally depicted on the map entitled ‘‘Saint ignated by this paragraph, and (ii) for the op- Joe River Corridor Map’’ on file with the Chief eration and maintenance of all streambank of the Forest Service and dated September 1978; stabilization structures constructed in connec- to be administered by the Secretary of Agri- tion with such segment (including both struc- culture. Notwithstanding any other provision of tures constructed before November 10, 1978, law, the classification of the Saint Joe River and structures constructed after such date, under this paragraph and the subsequent devel- and including both structures constructed opment plan for the river prepared by the Sec- under the authority of this section and struc- retary of Agriculture shall at no time interfere tures constructed under the authority of any with or restrict the maintenance, use, or access other Act); and to existing or future roads within the adjacent (B) permit access for such pumping and asso- lands nor interfere with or restrict present use ciated pipelines as may be necessary to assure of or future construction of bridges across that an adequate supply of water for owners of land portion of the Saint Joe designated as a ‘‘rec- adjacent to such segment and for fish, wildlife, reational river’’ under this paragraph. Dredge or and recreational uses outside the river cor- placer mining shall be prohibited within the ridor established pursuant to this paragraph. banks or beds of the main stem of the Saint Joe and its tributary streams in their entirety above The streambank structures to be constructed the confluence of the main stem with the North and maintained under subparagraph (A) shall in- Fork of the river. Nothing in this chapter shall clude, but not be limited to, structures at such be deemed to prohibit the removal of sand and sites as are specified with respect to such seg- gravel above the high water mark of the Saint ment on pages 62 and 63 of the August 1977 Re- Joe River and its tributaries within the river port, except that sites for such structures may corridor by or under the authority of any public be relocated to the extent deemed necessary by body or its agents for the purposes of construc- the Secretary of the Army (acting through the tion or maintenance of roads. The Secretary Chief of Engineers) by reason of physical shall take such action as is required under sub- changes in the river or river area. The Secretary section (b) of this section within one year from of the Army (acting through the Chief of Engi- November 10, 1978. For the purposes of this river, neers) shall condition the construction or main- there are authorized to be appropriated not tenance of any streambank stabilization struc- more than $1,000,000 for the acquisition of lands ture or of any recreational river feature at any or interest in lands. site under subparagraph (A)(i) upon the avail- (24) SALMON, IDAHO.—(A) The segment of the ability to the United States of such land and in- main river from the mouth of the North Fork of terests in land in such ownership as he deems the Salmon River downstream to Long Tom Bar necessary to carry out such construction or in the following classes: maintenance and to protect and enhance the (i) the forty-six-mile segment from the river in accordance with the purposes of this mouth of the North Fork of the Salmon River chapter. Administration of the river segment to Corn Creek as a recreational river; and designated by this paragraph shall be in coordi- (ii) the seventy-nine-mile segment from nation with, and pursuant to the advice of a Corn Creek to Long Tom Bar as a wild river; Recreational River Advisory Group which shall all as generally depicted on a map entitled be established by the Secretary. Such Group ‘‘Salmon River’’ dated November 1979, which is may include in its membership, representatives on file and available for public inspection in of the affected States and political subdivisions the Office of the Chief, Forest Service, United thereof, affected Federal agencies, and such or- States Department of Agriculture. ganized private groups as the Secretary deems (B) This segment shall be administered by the desirable. Notwithstanding the authority to the Secretary of Agriculture: Provided, That after contrary contained in section 1277(a) of this consultation with State and local governments title, no land or interests in land may be ac- and the interested public, the Secretary shall quired without the consent of the owner: Pro- take such action as is required by subsection (b) vided, That not to exceed 5 per centum of the of this section within one year from July 23, acreage within the designated river boundaries 1980. may be acquired in less than fee title without (C) The use of motorboats (including motor- the consent of the owner, in such instance of the ized jetboats) within this segment of the Salmon Secretary’s determination that activities are oc- River shall be permitted to continue at a level curring, or threatening to occur thereon which not less than the level of use which occurred constitute serious damage or threat to the in- during calendar year 1978, tegrity of the river corridor, in accordance with (D) The established use and occupancy as of the values for which this river was designated. June 6, 2003, of lands and maintenance or re- For purposes of carrying out the provisions of placement of facilities and structures for com- this chapter with respect to the river designated mercial recreation services at Stub Creek lo- by this paragraph, there are authorized to be ap- cated in section 28, T24N, R14E, Boise Principal propriated not to exceed $21,000,000, for acquisi- Meridian, at Arctic Creek located in section 21, tion of lands and interests in lands and for de- T25N, R12E, Boise Principal Meridian and at velopment. Smith Gulch located in section 27, T25N, R12E, § 1274 TITLE 16—CONSERVATION Page 1596

Boise Principal Meridian shall continue to be and Preserve; to be administered by the Sec- authorized, subject to such reasonable regula- retary of the Interior. tion as the Secretary deems appropriate, includ- (30) JOHN, ALASKA—That portion within the ing rules that would provide for termination for Gates of the Arctic National Park; to be admin- non-compliance, and if terminated, reoffering istered by the Secretary of the Interior. the site through a competitive process. (31) KOBUK, ALASKA—That portion within the (E) Subject to existing rights of the State of Gates of the Arctic National Park and Preserve; Idaho, including the right of access, with respect to be administered by the Secretary of the Inte- to the beds of navigable streams, tributaries or rior. rivers, dredge and placer mining in any form in- (32) MULCHATNA, ALASKA—That portion within cluding any use of machinery for the removal of the Lake Clark National Park and Preserve; to sand and gravel for mining purposes shall be be administered by the Secretary of the Inte- prohibited within the segment of the Salmon rior. River designated as a component of the Wild and (33) NOATAK, ALASKA—The river from its Scenic Rivers System by this paragraph; within source in the Gates of the Arctic National Park the fifty-three-mile segment of the Salmon to its confluence with the Kelly River in the River from Hammer Creek downstream to the Noatak National Preserve; to be administered confluence of the Snake River; and within the by the Secretary of the Interior. Middle Fork of the Salmon River; and its tribu- (34) NORTH FORK OF THE KOYUKUK, ALASKA— tary streams in their entirety: Provided, That That portion within the Gates of the Arctic Na- nothing in this paragraph shall be deemed to tional Park; to be administered by the Sec- prohibit the removal of sand and gravel, outside retary of the Interior. the boundaries of the Frank Church—River of (35) SALMON, ALASKA—That portion within the No Return Wilderness or the Gospel-Hump Wil- Kobuk Valley National Park; to be administered derness, above the high water mark of the Salm- by the Secretary of the Interior. on River or the Middle Fork and its tributaries (36) TINAYGUK, ALASKA—That portion within for the purposes of construction or maintenance the Gates of the Arctic National Park; to be ad- of public roads; Provided further, That this para- ministered by the Secretary of the Interior. graph shall not apply to any written mineral (37) TLIKAKILA, ALASKA—That portion within leases approved by the Board of Land Commis- the Lake Clark National Park; to be adminis- sioners of the State of Idaho prior to January 1, tered by the Secretary of the Interior. 1980. (38) ANDREAFSKY, ALASKA—That portion from (F) The provisions of section 1278(a) of this its source, including all headwaters, and the title with respect to the licensing of dams, East Fork, within the boundary of the Yukon water conduits, reservoirs, powerhouses, trans- Delta National Wildlife Refuge; to be adminis- mission lines or other project works, shall apply tered by the Secretary of the Interior. to the fifty-three-mile segment of the Salmon (39) IVISHAK, ALASKA—That portion from its River from Hammer Creek downstream to the source, including all headwaters and an un- confluence of the Snake River. named tributary from Porcupine Lake within (G) For the purposes of the segment of the the boundary of the Arctic National Wildlife Salmon River designated as a component of the Range; to be administered by the Secretary of Wild and Scenic Rivers System by this para- the Interior. graph, there is hereby authorized to be appro- (40) NOWITNA, ALASKA—That portion from the priated from the Land and Water Conservation point where the river crosses the west limit of Fund, after October 1, 1980, not more than township 18 south, range 22 east, Kateel River $6,200,000 for the acquisition of lands and inter- meridian, to its confluence with the Yukon ests in lands. River within the boundaries of the Nowitna Na- (25) ALAGNAK, ALASKA—That segment of the tional Wildlife Refuge; to be administered by the main stem and the major tributary to the Secretary of the Interior. Alagnak, the Nonvianuk River, within Katmai (41) SELAWIK, ALASKA—That portion from a National Preserve; to be administered by the fork of the headwaters in township 12 north, Secretary of the Interior. range 10 east, Kateel River meridian to the con- (26) ALATNA, ALASKA—The main stem within fluence of the Kugarak River; within the the Gates of the Arctic National Park; to be ad- Selawik National Wildlife Refuge to be adminis- ministered by the Secretary of the Interior. tered by the Secretary of the Interior. (27) ANIAKCHAK, ALASKA—That portion of the (42) SHEENJEK, ALASKA—The segment within river, including its major tributaries, Hidden the Arctic National Wildlife Refuge; to be ad- Creek, Mystery Creek, Albert Johnson Creek, ministered by the Secretary of the Interior. and North Fork Aniakchak River, within the (43) WIND, ALASKA—That portion from its Aniakchak National Monument and National source, including all headwaters and one un- Preserve; to be administered by the Secretary of named tributary in township 13 south, within the Interior. the boundaries of the Arctic National Wildlife (28) CHARLEY, ALASKA—The entire river, in- Refuge; to be administered by the Secretary of cluding its major tributaries, Copper Creek, Bo- the Interior. nanza Creek, Hosford Creek, Derwent Creek, (44) ALAGNAK, ALASKA—Those segments or Flat-Orthmer Creek, Crescent Creek, and Mo- portions of the main stem and Nonvianuk tribu- raine Creek, within the Yukon-Charley Rivers tary lying outside and westward of the Katmia National Preserve; to be administered by the National Park/Preserve and running to the west Secretary of the Interior. boundary of township 13 south, range 43 west; to (29) CHILIKADROTNA, ALASKA—That portion of be administered by the Secretary of the Inte- the river within the Lake Clark National Park rior. Page 1597 TITLE 16—CONSERVATION § 1274

(45) BEAVER CREEK, ALASKA—The segment of ice, United States Department of Agriculture; to the main stem from the vicinity of the con- be administered by the Secretary of Agriculture. fluence of the Bear and Champion Creeks down- This designation shall not prevent water users stream to its exit from the northeast corner of receiving Central Arizona Project water alloca- township 12 north, range 6 east, Fairbanks me- tions from diverting that water through an ex- ridian within the White Mountains National change agreement with downstream water users Recreation Area, and the Yukon Flats National in accordance with Arizona water law. After Wildlife Refuge, to be administered by the Sec- consultation with State and local governments retary of the Interior. and the interested public and within two years (46) BIRCH CREEK, ALASKA—The segment of the after August 28, 1984, the Secretary shall take main stem from the south side of Steese High- such action as is required under subsection (b) of way in township 7 north, range 10 east, Fair- this section. banks meridian, downstream to the south side of (52) AU SABLE, MICHIGAN—The segment of the the Steese Highway in township 10 north, range main stem from the project boundary of the Mio 16 east; to be administered by the Secretary of Pond project downstream to the project bound- the Interior. ary at Alcona Pond project as generally depicted (47) DELTA, ALASKA—The segment from and in- on a map entitled ‘‘Au Sable River’’ which is on cluding all of the Tangle Lakes to a point one- file and available for public inspection in the Of- half mile north of Black Rapids; to be adminis- fice of the Chief, Forest Service, United States tered by the Secretary of the Interior. Department of Agriculture; to be administered (48) FORTYMILE, ALASKA—The main stem with- by the Secretary of Agriculture. in the State of Alaska; O’Brien Creek; South (53) TUOLUMNE, CALIFORNIA—The main river Fork; Napoleon Creek, Franklin Creek, Uhler from its sources on Mount Dana and Mount Creek, Walker Fork downstream from the con- Lyell in Yosemite National Park to Don Pedro fluence of Liberty Creek; Wade Creek; Mosquito Reservoir consisting of approximately 83 miles Fork downstream from the vicinity of as generally depicted on the proposed boundary Kechumstuk; West Fork Dennison Fork down- map entitled ‘‘Alternative A’’ contained in the stream from the confluence of Logging Cabin Draft Tuolumne Wild and Scenic River Study Creek; Dennison Fork downstream from the con- and Environmental Impact Statement published fluence of West Fork Dennison Fork: Logging by the United States Department of the Interior Cabin Creek; North Fork; Hutchison Creek; and Department of Agriculture in May 1979; to Champion Creek; the Middle Fork downstream be administered by the Secretary of the Interior from the confluence of Joseph Creek; and Joseph and the Secretary of Agriculture. After con- Creek; to be administered by the Secretary of sultation with State and local governments and the Interior. the interested public and within two years from (49) GULKANA, ALASKA—The main stem from September 28, 1984, the Secretary shall take the outlet of Paxon Lake in township 12 north, such action as is required under subsection (b) of range 2 west, Copper River meridian to the con- this section. Nothing in this chapter shall pre- fluence with Sourdough Creek; the south branch clude the licensing, development, operation, or of the west fork from the outlet of an unnamed maintenance of water resources facilities on lake in sections 10 and 15, township 10 north, those portions of the North Fork, Middle Fork range 7 west, Copper River meridian to the con- or South Fork of the Tuolumne or Clavey Rivers fluence with the west fork; the north branch that are outside the boundary of the wild and from the outlet of two unnamed lakes, one in scenic river area as designated in this section. sections 24 and 25, the second in sections 9 and Nothing in this section is intended or shall be 10, township 11 north, range 8 west, Copper River construed to affect any rights, obligations, meridian to the confluence with the west fork; privileges, or benefits granted under any prior the west fork from its confluence with the north authority of law including chapter 4 of the Act and south branches downstream to its con- of December 19, 1913, commonly referred to as fluence with the main stem; the middle fork the Raker Act (38 Stat. 242) and including any from the outlet of Dickey Lake in township 13 agreement or administrative ruling entered into north, range 5 west, Copper River meridian to or made effective before September 28, 1984. For the confluence with the main stem; to be classi- fiscal years commencing after September 30, fied as a wild river area and to be administered 1985, there are authorized to be appropriated by the Secretary of the Interior. such sums as may be necessary to implement (50) UNALAKLEET, ALASKA—The segment of the the provisions of this subsection. main stem from the headwaters in township 12 (54) ILLINOIS, OREGON: The segment from the south, range 3 west, Kateel River meridian ex- boundary of the Siskiyou National Forest down- tending downstream approximately 65 miles to stream to its confluence with the Rogue River the western boundary of township 18 south, as generally depicted on a map entitled ‘‘Illinois range 8 west; to be administered by the Sec- River Study’’ and is also part of a report enti- retary of the Interior. tled ‘‘A Proposal: Illinois Wild and Scenic (51) VERDE, ARIZONA—The segment from the River’’; to be administered by the Secretary of boundary between national forest and private Agriculture. After consultation with State and land in sections 26 and 27, township 13 north, local governments and the interested public, the range 5 east, Gila Salt River meridian, down- Secretary shall take such action as is required stream to the confluence with Red Creek, as under subsection (b) of this section within one generally depicted on a map entitled ‘‘Verde year from October 19, 1984. For the purposes of River—Wild and Scenic River’’, dated March this chapter with respect to the river designated 1984, which is on file and available for public in- by this paragraph, effective October 1, 1984, spection in the Office of the Chief, Forest Serv- there are authorized to be appropriated such § 1274 TITLE 16—CONSERVATION Page 1598 sums as necessary for the acquisition of lands or line of section 30, township 8 north, range 72 interests in lands, and such sums as necessary west of the sixth principal meridian, to con- for development. fluence of the main stem of the Cache la (55) OWYHEE, OREGON: The South Fork from Poudre River, as a wild river. the Idaho-Oregon State line downstream to With respect to the portions of the river seg- Three Forks; the Owyhee River from Three ments designated by this paragraph which are Forks downstream to China Gulch; and the within the boundaries of Rocky Mountain Na- Owyhee River downstream from Crooked Creek tional Park, the requirements of subsection (b) to the Owyhee Reservoir as generally depicted of this section shall be fulfilled by the Secretary on a map entitled ‘‘Owyhee, Oregon’’ dated April 1984; all three segments to be administered as a of the Interior through appropriate revisions to wild river by the Secretary of the Interior. After the general management plan for the park, and consultation with State and local governments the boundaries, classification, and development and the interested public, the Secretary shall plans for such portions need not be published in take such appropriate action as is required the Federal Register. Such revisions to the gen- under subsection (b) of this section within one eral management plan for the park shall assure year from October 19, 1984. For the purposes of that no development or use of parklands shall be this chapter with respect to the river designated undertaken that is inconsistent with the des- by this paragraph, effective October 1, 1984, ignation of such river segments as a wild river. there are authorized to be appropriated such For the purposes of the segments designated by sums as necessary for the acquisition of lands or this paragraph, there are authorized to be appro- interests and such sums as necessary for devel- priated $500,000 for development and $2,500,000 opment. for land acquisition. (56) HORSEPASTURE, NORTH CAROLINA—The seg- (58) SALINE BAYOU, LOUISIANA—The segment ment from Bohaynee Road (N.C. 281) down- from Saline Lake upstream to the Kisatchie Na- stream approximately 4.25 miles to where the tional Forest, as generally depicted on the Pro- segment ends at Lake Jocassee, to be adminis- posed Boundary Map, numbered FS–57, and tered by the Secretary of Agriculture. Notwith- dated March 1986; to be administered by the Sec- standing any limitation of section 1277 of this retary of Agriculture. For the purposes of the title, the Secretary is authorized to utilize the segment designated by this paragraph, there are authority of this chapter and those pertaining authorized to be appropriated for fiscal years to the National Forests to acquire by purchase commencing after September 30, 1986, not to ex- with donated or appropriated funds, donation, ceed $1,000,000 for the acquisition of lands and exchange or otherwise, such non-Federal lands interests in lands and for development. or interests in lands within, near, or adjacent to (59) BLACK CREEK, MISSISSIPPI—The segment the designated segments of the river which the from Fairley Bridge Landing upstream to Secretary determines will protect or enhance Moody’s Landing as generally depicted on a map the scenic and natural values of the river. entitled ‘‘Black Creek Wild and Scenic River’’, (57) CACHE LA POUDRE, COLORADO—The follow- numbered FS–58 and dated March 1986, to be ad- ing segments as generally depicted on the pro- ministered by the Secretary of Agriculture as a posed boundary map numbered FS–56 and dated scenic river area under section 1273(b)(2) of this March 1986, published by the United States De- title. For the purposes of the segment des- partment of Agriculture, each to be adminis- ignated by this paragraph, there are authorized tered by the Secretary of Agriculture; except to be appropriated up to $300,000 for the acquisi- that those portions of the segments so des- tion of lands and interests in lands and for de- ignated which are within the boundary of Rocky velopment. Mountain National Park shall continue to be ad- (60) KLICKITAT, WASHINGTON: The segment ministered by the Secretary of the Interior: from its confluence with Wheeler Creek, Wash- (A) Beginning at Poudre Lake downstream ington, near the town of Pitt, Washington, to its to the confluence of Joe Wright Creek, as a confluence with the Columbia River; to be clas- wild river. This segment to be designated the sified as a recreation river and to be adminis- ‘‘Peter H. Dominick Wild River Area’’. tered by the Secretary of Agriculture. The (B) Downstream from the confluence of Joe boundaries of the designated portions of the Wright Creek to a point where the river inter- Klickitat River shall be as generally depicted on sects the easterly north-south line of the west a map dated November, 1987, and entitled half southwest quarter of section 1, township 8 ‘‘Klickitat National Recreation River, River north, range 71 west of the sixth principal me- Management Area: Final Boundary’’, which is ridian, as a recreational river. on file in the office of the Chief, Forest Service, (C) South Fork of the Cache la Poudre River Washington, District of Columbia. from its source to the Commanche 1 Peak Wil- (61) WHITE SALMON, WASHINGTON: The segment derness Boundary, approximately four miles, from its confluence with Gilmer Creek, Wash- as a wild river. ington, near the town of B Z Corner, Washing- (D) Beginning at the Commanche 1 Peak Wil- ton, to its confluence with Buck Creek, Wash- derness Boundary to a point on the South ington; to be classified as a scenic river and to Fork of the Cache la Poudre River in section be administered by the Secretary of Agriculture. 1, township 7 north, range 73 west of the sixth (62) MERCED, CALIFORNIA.—(A) The main stem principal meridian, at elevation 8050 mean sea from its sources (including Red Peak Fork, level, as a recreational river. Merced Peak Fork, Triple Peak Fork, and Lyell (E) South Fork of the Cache la Poudre River Fork) on the south side of Mount Lyell in Yo- from its intersection with the easterly section semite National Park to a point 300 feet up- stream of the confluence with Bear Creek, con- 1 So in original. Probably should be ‘‘Comanche’’. sisting of approximately 71 miles, and the South Page 1599 TITLE 16—CONSERVATION § 1274

Fork of the river from its source near Triple Di- constitute the bed or bank or are situated with- vide Peak in Yosemite National Park to the in one-quarter mile of the bank are hereby with- confluence with the main stem, consisting of ap- drawn, subject to valid existing rights, from all proximately 43 miles, both as generally depicted forms of appropriation under the mining laws on the map entitled ‘‘Merced River Wild and and from operation of the mineral leasing laws Scenic Rivers—Proposed’’, dated June 1987, to be including, in both cases, amendments thereto. administered by the Secretary of Agriculture (63) KINGS, CALIFORNIA.—The Middle Fork of and the Secretary of the Interior. With respect the Kings River from its headwaters at Lake to the portions of the river designated by this Helen between Muir Pass and Black Giant subparagraph which are within the boundaries of Mountain to its confluence with the main stem; Yosemite National Park, and the El Portal Ad- the South Fork, Kings River from its head- ministrative Unit, the requirements of sub- waters at Lake 11599 to its confluence with the section (b) of this section shall be fulfilled by main stem; and the main stem of the Kings the Secretary of the Interior through appro- River from the confluence of the Middle Fork priate revisions to the general management plan and the South Fork to the point at elevation for the park, and the boundaries, classification, 1,595 feet above mean sea level. The segments and development plans for such portions need within the Kings Canyon National Park shall be not be published in the Federal Register. Such administered by the Secretary of the Interior. revisions to the general management plan for The remaining segments shall be administered the park shall assure that no development or use by the Secretary of Agriculture. After consulta- of park lands shall be undertaken that is incon- tion with State and local governments and the sistent with the designation of such river seg- interested public and within one year after No- ments. There are authorized to be appropriated vember 3, 1987, the respective Secretaries shall such sums as may be necessary to carry out the take such action as is required under subsection purposes of this subparagraph, except that no (b) of this section. In the case of the segments of more than $235,000 may be appropriated to the the river administered by the Secretary of the Secretary of Agriculture for the acquisition of Interior, the requirements of subsection (b) of lands and interests in lands. this section shall be fulfilled through appro- (B)(i) The main stem from a point 300 feet up- priate revisions to the general management plan stream of the confluence with Bear Creek down- for Kings Canyon National Park, and the bound- stream to the normal maximum operating pool aries, classification, and development plans for water surface level of Lake McClure (elevation such segments need not be published in the Fed- 867 feet mean sea level) consisting of approxi- eral Register. Such revisions to the general mately 8 miles, as generally depicted on the map entitled ‘‘Merced Wild and Scenic River’’, dated management plan for the park shall assure that April, 1990. The Secretary of the Interior shall no development or use of park lands shall be administer the segment as recreational, from a undertaken that is inconsistent with the des- point 300 feet upstream of the confluence with ignation of the river under this paragraph. For Bear Creek downstream to a point 300 feet west the purposes of the segments designated by this of the boundary of the Mountain King Mine, and paragraph, there are authorized to be appro- as wild, from a point 300 feet west of the bound- priated such sums as may be necessary, but not ary of the Mountain King Mine to the normal to exceed $250,000, to the Secretary of Agri- maximum operating pool water surface level of culture for development and land acquisition. Lake McClure. The requirements of subsection (64)(A) NORTH FORK KERN RIVER, CALIFORNIA.— (b) of this section shall be fulfilled by the Sec- The segment of the main stem from the Tulare- retary of the Interior through appropriate revi- Kern County line to its headwaters in Sequoia sions to the Sierra Management Framework National Park, as generally depicted on a map Plan for the Sierra Planning Area of the Folsom entitled ‘‘Kern River Wild and Scenic River— Resource Area, Bakersfield District, Bureau of Proposed’’ and dated June, 1987; to be adminis- Land Management. There are authorized to be tered by the Secretary of Agriculture; except appropriated such sums as may be necessary to that portion of the river within the boundaries carry out the purposes of this subparagraph. of the Sequoia National Park shall be adminis- (ii) To the extent permitted by, and in a man- tered by the Secretary of the Interior. With re- ner consistent with section 1278 of this title, and spect to the portion of the river segment des- in accordance with other applicable law, the ignated by this paragraph which is within the Secretary of the Interior shall permit the con- boundaries of Sequoia National Park, the re- struction and operation of such pumping facili- quirements of subsection (b) of this section shall ties and associated pipelines as identified in the be fulfilled by the Secretary of the Interior Bureau of Land Management right-of-way appli- through appropriate revisions to the general cation CACA 26084, filed by the Mariposa County management plan for the park, and the bound- Water Agency on November 7, 1989, and known aries, classification, and development plans for as the ‘‘Saxon Creek Project’’, to assure an ade- such portion need not be published in the Fed- quate supply of water from the Merced River to eral Register. Such revision to the general man- Mariposa County. agement plan for the park shall assure that no (C) With respect to the segments of the main developments or use of park lands shall be stem of the Merced River and the South Fork undertaken that is inconsistent with the des- Merced River designated as recreational or sce- ignation of such river segment. nic pursuant to this paragraph or by the appro- (B) SOUTH FORK KERN RIVER, CALIFORNIA.—The priate agency pursuant to subsection (b) of this segment from its headwaters in the Inyo Na- section, the minerals to 2 Federal lands which tional Forest to the southern boundary of the Domelands Wilderness in the Sequoia National 2 So in original. Probably should be ‘‘on’’. Forest, as generally depicted on a map entitled § 1274 TITLE 16—CONSERVATION Page 1600

‘‘Kern River Wild and Scenic River—Proposed’’ ing for public use and enjoyment of the river and dated June 1987; to be administered by the designated by this paragraph, consistent with Secretary of Agriculture. the preservation and enhancement of the natu- (C) Nothing in this chapter shall affect the ral and scenic values of such river, the Sec- continued operation and maintenance of the ex- retary may, with the consent of the owner isting diversion project, owned by Southern thereof, negotiate a memorandum of under- California Edison on the North Fork of the Kern standing or cooperative agreement, or acquire River, including reconstruction or replacement not more than 10 acres of lands or interests in of facilities to the same extent as existed on No- such lands, or both, as may be necessary to vember 24, 1987. allow public access to the Bluestone River and (D) For the purposes of the segments des- to provide, outside the boundary of the scenic ignated by this paragraph, there are authorized river, parking and related facilities in the vicin- to be appropriated such sums as may be nec- ity of the area known as Eads Mill. essary, but not to exceed $100,000, to the Sec- (66)(A) SIPSEY FORK OF THE WEST FORK, ALA- retary of Agriculture for development and land BAMA.—Segments of the Sipsey Fork and several acquisition. tributaries; to be administered by the Secretary (65) BLUESTONE, WEST VIRGINIA.—The segment of Agriculture in the classifications indicated, in Mercer and Summers Counties, West Vir- as follows: ginia, from a point approximately two miles up- (1) Sipsey Fork from the confluence of stream of the Summers and Mercer County line Sandy Creek upstream to Forest Highway 26, down to the maximum summer pool elevation as a scenic river; and (one thousand four hundred and ten feet above (2) Sipsey Fork from Forest Highway 26 up- mean sea level) of Bluestone Lake as depicted on stream to it 3 origin at the confluence of the boundary map entitled ‘‘Bluestone Wild and Thompson Creek and Hubbard Creek, as a wild Scenic River’’, numbered BLUE–80,005, dated river; and May 1996; to be administered by the Secretary of (3) Hubbard Creek from its confluence with the Interior as a scenic river. In carrying out Thompson Creek upstream to Forest Road 210, the requirements of subsection (b) of this sec- as a wild river; and tion, the Secretary shall consult with State and (4) Thompson Creek from its confluence with local governments and the interested public. Hubbard Creek upstream to its origin in sec- The Secretary shall not be required to establish tion 4, township 8 south, range 9 west, as a detailed boundaries of the river as provided wild river; and under subsection (b) of this section. Nothing in (5) Tedford Creek from its confluence with this chapter shall preclude the improvement of Thompson Creek upstream to section 17, town- any existing road or right-of-way within the ship 8 south, range 9 west, as a wild river; and boundaries of the segment designated under this (6) Mattox Creek from it confluence with paragraph. Jurisdiction over all lands and im- Thompson Creek upstream to section 36 of provements on such lands owned by the United township 7 south, range 9 west, as a wild river; States within the boundaries of the segment and designated under this paragraph is hereby trans- (7) Borden Creek from its confluence with ferred without reimbursement to the adminis- the Sipsey Fork upstream to Forest Road 208, trative jurisdiction of the Secretary of the Inte- as a wild river; and rior, subject to leases in effect on October 26, (8) Borden Creek from Forest Road 208 up- 1988 (or renewed thereafter) between the United stream to its confluence with Montgomery States and the State of West Virginia with re- Creek, as a scenic river; and spect to the Bluestone State Park and the Blue- (9) Montgomery Creek from its confluence stone Public Hunting and Fishing Area. Nothing with Borden Creek upstream to the southwest in this chapter shall affect the management by quarter of the southwest quarter of section 36, the State of hunting and fishing within the seg- township 7 south, range 8 west, as a scenic ment designated under this paragraph. Nothing river; and in this chapter shall affect or impair the man- (10) Flannigan Creek from its confluence agement by the State of West Virginia of other with Borden Creek upstream to Forest Road wildlife activities in the Bluestone Public Hunt- 208, as a wild river; and ing and Fishing Area to the extent permitted in (11) Flannigan Creek from Forest Road 208 the lease agreement as in effect on October 26, upstream to section 4, township 8 south, range 1988, and such management may be continued 8 west, as a scenic river; and (12) Braziel Creek from its confluence with pursuant to renewal of such lease agreement. If Borden Creek upstream to section 12, township requested to do so by the State of West Virginia, 8 south, range 9 west, as a wild river; and the Secretary may terminate such leases and as- (13) Hogood Creek from its confluence with sume administrative authority over the areas Braziel Creek upstream to the confluence with concerned. Nothing in the designation of the an unnamed tributary in section 7, township 8 segment referred to in this paragraph shall af- south, range 8 west, as a wild river. fect or impair the management of the Bluestone project or the authority of any department, (B) A map entitled ‘‘Sipsey Fork of the West agency, or instrumentality of the United States Fork Wild and Scenic River’’, generally depict- to carry out the project purposes of that project ing the Sipsey Fork and the tributaries, shall be as of October 26, 1988. Nothing in this chapter on file and remain available for public inspec- shall be construed to affect the continuation of tions in the office of the Chief of the Forest studies relating to such project which were com- Service, Department of Agriculture. menced before October 26, 1988. In order to pro- vide reasonable public access and vehicle park- 3 So in original. Probably should be ‘‘its’’. Page 1601 TITLE 16—CONSERVATION § 1274

(67) WILDCAT RIVER, NEW HAMPSHIRE.—(A) A (vi) The Commission shall cease to exist on 14.51 mile segment including the following tribu- the date 10 years after October 28, 1988. taries: Wildcat Brook, Bog Brook, and Great (vii) The provisions of section 14(b) of the Fed- Brook (all as generally depicted on a map enti- eral Advisory Committee Act (Act of October 6, tled ‘‘Wildcat River’’, dated October 1987) to be 1972; 86 Stat. 776), are hereby waived with re- administered as follows: those segments of the spect to the Commission. Wildcat River and its tributaries located within (C) The authority of the Secretary to acquire the boundary of the White Mountain National lands outside the boundary of the White Moun- Forest (hereinafter in this paragraph referred to tain National Forest for purposes of this para- as ‘‘the forest’’) shall be administered by the graph shall be limited to acquisition by dona- Secretary of Agriculture (hereinafter in this tion or acquisition with the consent of the paragraph referred to as the ‘‘Secretary’’); those owner thereof. The Secretary may also acquire segments located outside the boundary of the scenic easements for purposes of this paragraph forest shall be administered by the Secretary as provided in section 1277 of this title. through a cooperative agreement with the Board (D) There are hereby authorized to be appro- of Selectmen of the town of Jackson and the priated such sums as may be necessary to carry State of New Hampshire pursuant to section out the purposes of this paragraph. 1281(e) of this title. Such agreement shall pro- (68) BIG MARSH CREEK, OREGON.—The 15-mile vide for the long-term protection, preservation, segment from the northeast quarter of section and enhancement of the river segments located 15, township 26 south, range 6 east, to its con- outside the boundary of the forest and shall be fluence with Crescent Creek in the northeast consistent with the comprehensive management quarter of section 20, township 24 south, range 7 plan to be prepared by the Secretary pursuant to east, as a recreational river; to be administered subsection (d) of this section and with the July by the Secretary of Agriculture: Provided, That 1987 River Conservation Plan prepared by the nothing in this chapter shall prohibit the Sec- Wildcat Brook Advisory Committee in conjunc- retary from undertaking construction activities tion with the National Park Service. to enhance and restore wetland resources associ- (B)(i) To assist in the implementation of this ated with Big Marsh Creek. paragraph, the Secretary shall establish, within (69) CHETCO, OREGON.—The 44.5-mile segment 3 months after October 28, 1988, a Wildcat River from its headwaters to the Siskiyou National Advisory Commission (hereinafter in this para- Forest boundary; to be administered by the Sec- graph referred to as the ‘‘Commission’’). retary of Agriculture in the following classes: (ii) The Commission shall be composed of 7 (A) The 25.5-mile segment from its head- members appointed by the Secretary as follows: waters to Boulder Creek at the Kalmiopsis one member from recommendations submitted Wilderness boundary as a wild river; by the Governor of the State of New Hampshire; (B) the 8-mile segment from Boulder Creek 4 members from recommendations submitted by to Steel Bridge as a scenic river; and the Jackson Board of Selectmen, of which at (C) the 11-mile segment from Steel Bridge to least 2 members shall be riparian property own- the Siskiyou National Forest boundary, one ers, and at least one member shall be on the mile below Wilson Creek, as a recreational Board of Selectmen; one member from recom- river. mendations submitted by the Jackson Conserva- tion Commission; and one member selected by (70) CLACKAMAS, OREGON.—The 47-mile seg- the Secretary. Members of the Commission shall ment from Big Springs to Big Cliff; to be admin- be appointed for terms of 3 years. A vacancy in istered by the Secretary of Agriculture in the the Commission shall be filled in the manner in following classes: which the original appointment was made. Any (A) The 4-mile segment from Big Springs to member appointed to fill a vacancy occurring the Forest Service Road 4690 bridge as a scenic before the expiration of the term for which his river; (B) the 3.5-mile segment from the Forest predecessor was appointed shall be appointed Service Road 4690 bridge to the junction with only for the remainder of such term. Any mem- ber of the Commission appointed for a definite Oregon State Highway 224 as a recreational term may serve after the expiration of his term river; (C) the 10.5-mile segment from Oregon State until his successor is appointed. The Commis- Highway 224 to the June Creek Bridge as a sce- sion shall designate one of its members as Chair- nic river; man. (D) the 9-mile segment from June Creek (iii) The Commission shall meet on a regular Bridge to Tar Creek as a recreational river; basis. Notice of meetings and agenda shall be (E) the 5.5-mile segment from Tar Creek to published in local newspapers which have a dis- just south of Indian Henry Campground as a tribution which generally covers the area af- scenic river; and fected by the designation of the segments de- (F) the 14.5-mile segment just south of In- scribed in this paragraph. Commission meetings dian Henry Campground to Big Cliff as a rec- shall be held at locations and in such a manner reational river. as to ensure adequate public involvement. (iv) Members of the Commission shall serve (71) CRESCENT CREEK, OREGON.—The 10-mile without compensation as such, but the Sec- segment from the southwest quarter of section retary may pay expenses reasonably incurred in 11, township 24 south, range 6 east, to the west carrying out their responsibilities under this section line of section 13, township 24 south, paragraph on vouchers signed by the Chairman. range 7 east, as a recreational river; to be ad- (v) Four members of the Commission shall ministered by the Secretary of Agriculture. constitute a quorum but a lesser number may (72) CROOKED, OREGON.—The 15-mile segment hold hearings. from the National Grassland boundary to Dry § 1274 TITLE 16—CONSERVATION Page 1602

Creek; to be administered by the Secretary of (I) The 1.6 mile segment of the South Fork the Interior in the following classes: of Ankle Creek from its confluence with an (A) The 7-mile segment from the National unnamed tributary in the SE1⁄4SE1⁄4 of section Grassland boundary to River Mile 8 south of 17, township 34 south, range 33 east, to its con- Opal Spring as a recreational river; and fluence with Ankle Creek. (B) the 8-mile segment from Bowman Dam (75) EAGLE CREEK, OREGON.—The 27-mile seg- to Dry Creek as a recreational river. ment from its headwaters below Eagle Lake to (73) DESCHUTES, OREGON.—Those portions as the Wallowa-Whitman National Forest boundary follows: at Skull Creek; to be administered by the Sec- (A) The 40.4-mile segment from Wickiup retary of Agriculture in the following classes: Dam to northern boundary of Sunriver at the (A) The 4-mile segment from its headwaters southwest quarter of section 20, township 19 below Eagle Lake to the Eagle Cap Wilderness south, range 11 east as a recreational river; to boundary at Hummingbird Mountain as a wild be administered by the Secretary of Agri- river; culture; (B) the 15.5-mile segment from the Eagle Cap (B) the 11-mile segment from the northern Wilderness boundary at Hummingbird Moun- boundary of Sunriver at the southwest quarter tain to Paddy Creek as a recreational river; of section 20, township 19 south, range 11 east, (C) the 6-mile segment from Paddy Creek to to Lava Island Camp as a scenic river; to be Little Eagle Creek as a scenic river; and (D) the 1.5-mile segment from Little Eagle administered by the Secretary of Agriculture; Creek to the Wallowa-Whitman National For- (C) the 3-mile segment from Lava Island est boundary as a recreational river. Camp to the Bend Urban Growth Boundary at the southwest corner of section 13, township 18 (76) ELK, OREGON.—The 29-mile segment to be south, range 11 east, as a recreational river; to administered by the Secretary of Agriculture in be administered by the Secretary of Agri- the following classes: culture; (A) The 17-mile segment from the confluence (D) the 19-mile segment from Oden Falls to of the North and South Forks of the Elk to the Upper End of Lake Billy Chinook as a sce- Anvil Creek as a recreational river. nic river; to be administered by the Secretary (B)(i) The approximately 0.6-mile segment of of the Interior; the North Fork Elk from its source in sec. 21, (E) the 100-mile segment from the Pelton Re- T. 33 S., R. 12 W., Willamette Meridian, down- regulating Dam to its confluence with the Co- stream to 0.01 miles below Forest Service lumbia River as a recreational river; to be ad- Road 3353, as a scenic river. ministered by the Secretary of the Interior (ii) The approximately 5.5-mile segment of the North Fork Elk from 0.01 miles below For- through a cooperative management agreement est Service Road 3353 to its confluence with between the Confederated Tribes of the Warm the South Fork Elk, as a wild river. Springs Reservation, and the State of Oregon (C)(i) The approximately 0.9-mile segment of as provided in section 1281(e) of this title and the South Fork Elk from its source in the section 105 of the Omnibus Oregon Wild and southeast quarter of sec. 32, T. 33 S., R. 12 W., Scenic Rivers Act of 1988. Willamette Meridian, downstream to 0.01 (74) DONNER UND BLITZEN, OREGON.—Those seg- miles below Forest Service Road 3353, as a sce- ments, including its major tributaries, as a wild nic river. river; to be administered by the Secretary of the (ii) The approximately 4.2-mile segment of Interior as follows: the South Fork Elk from 0.01 miles below For- (A) The 16.75-mile segment of the Donner est Service Road 3353 to its confluence with und Blitzen from its confluence with the the North Fork Elk, as a wild river. South Fork Blitzen and Little Blitzen. (77) GRANDE RONDE, OREGON.—The 43.8-mile (B) The 12.5-mile segment of the Little segment from its confluence with the Wallowa Blitzen from its headwaters to its confluence River to the Oregon-Washington State line in with the South Fork Blitzen. the following classes: (C) The 16.5-mile segment of the South Fork (A) The 1.5-mile segment from its confluence Blitzen from its headwaters to its confluence with the Wallowa River to the Umatilla Na- with the South Fork Blitzen. tional Forest boundary in section 11, township (D) The 10-mile segment of Big Indian Creek 3 north, range 40 east, as a recreational river; from its headwaters to its confluence with the to be administered by the Secretary of Agri- South Fork Blitzen. culture; (E) The 3.7-mile segment of Little Indian (B) the 17.4-mile segment from the Umatilla Creek from its headwaters to its confluence National Forest boundary in section 11, town- with Big Indian Creek. ship 3 north, range 40 east, to the Wallowa- (F) The 13.25-mile segment of Fish Creek Whitman National Forest boundary approxi- from its headwaters to its confluence with the mately one-half mile east of Grossman Creek Donner und Blitzen. as a wild river; to be administered by the Sec- (G) The 5.1 mile segment of Mud Creek from retary of Agriculture; its confluence with an unnamed spring in the (C) the 9-mile segment from the Wallowa- SW1⁄4SE1⁄4 of section 32, township 33 south, Whitman National Forest boundary approxi- range 33 east, to its confluence with the mately one-half mile east of Grossman Creek Donner und Blitzen River. to Wildcat Creek as a wild river; to be admin- (H) The 8.1 mile segment of Ankle Creek istered by the Secretary of the Interior; and from its headwaters to its confluence with the (D) the 15.9-mile segment from Wildcat Donner und Blitzen River. Creek to the Oregon-Washington State line as Page 1603 TITLE 16—CONSERVATION § 1274

a recreational river; to be administered by the ervoir Dam to Scott Creek as a recreational Secretary of the Interior. river. (78) IMNAHA, OREGON.—Those segments, includ- (85) METOLIUS, OREGON.—The 28.6-mile seg- ing the South Fork Imnaha; to be administered ment from the south Deschutes National Forest by the Secretary of Agriculture in the following boundary to Lake Billy Chinook in the following classes: classes: (A) The 6-mile segment from its confluence (A) The 11.5-mile segment from the south with the North and South Forks of the Imnaha Deschutes National Forest boundary (approxi- River to Indian Crossing as a wild river; mately 2,055.5 feet from Metolius Springs) to (B) the 58-mile segment from Indian Cross- Bridge 99 as a recreational river; to be admin- ing to Cow Creek as a recreational river; istered by the Secretary of Agriculture; (C) the 4-mile segment from Cow Creek to its (B) the 17.1-mile segment from Bridge 99 to mouth as a scenic river; and Lake Billy Chinook as a scenic river; by 4 the (D) the 9-mile segment of the South Fork Secretary of Agriculture, through a coopera- Imnaha from its headwaters to its confluence tive management agreement between the Sec- with the Imnaha River as a wild river. retary of the Interior and the Confederated Tribes of the Warm Springs Reservation, as (79) JOHN DAY, OREGON.—The 147.5-mile seg- provided in section 1281(e) of this title and sec- ment from Service Creek to Tumwater Falls as tion 105 of the Omnibus Oregon Wild and Sce- a recreational river; to be administered through nic Rivers Act of 1988: Provided, That the river a cooperative management agreement between and its adjacent land area will be managed to the State of Oregon and the Secretary of the In- provide a primitive recreational experience as terior as provided in section 1281(e) of this title. defined in the ROS User’s Guide. (80) JOSEPH CREEK, OREGON.—The 8.6-mile seg- ment from Joseph Creek Ranch, one mile down- (86) MINAM, OREGON.—The 39-mile segment stream from Cougar Creek, to the Wallowa- from its headwaters at the south end of Minam Whitman National Forest boundary as a wild Lake to the Eagle Cap Wilderness boundary, river; to be administered by the Secretary of Ag- one-half mile downstream from Cougar Creek, as riculture. a wild river; to be administered by the Secretary (81) LITTLE DESCHUTES, OREGON.—The 12-mile of Agriculture. segment from its source in the northwest quar- (87) NORTH FORK CROOKED, OREGON.—The 32.3- ter of section 15, township 26 south, range 61⁄2 mile segment from its source at Williams Prai- east to the north section line of section 12, rie to one mile from its confluence with the township 26 south, range 7 east as a recreational Crooked River in the following classes: river; to be administered by the Secretary of Ag- (A) The 3-mile segment from its source at riculture. Williams Prairie to the Upper End of Big Sum- (82) LOSTINE, OREGON.—The 16-mile segment mit Prairie as a recreational river; to be ad- from its headwaters to the Wallowa-Whitman ministered by the Secretary of Agriculture; National Forest boundary; to be administered (B) the 3.7-mile segment from the Lower End by the Secretary of Agriculture in the following of Big Summit Prairie to the bridge across classes: from the Deep Creek Campground as a rec- (A) The 5-mile segment from its headwaters reational river; to be administered by the Sec- to the Eagle Cap Wilderness boundary as a retary of Agriculture; (C) the 8-mile segment from the bridge wild river; and across from the Deep Creek Campground to (B) the 11-mile segment from the Eagle Cap the Ochoco National Forest boundary, one- Wilderness boundary to the Wallowa-Whitman half mile from Lame Dog Creek as a scenic National Forest boundary at Silver Creek as a river; to be administered by the Secretary of recreational river. Agriculture; (83) MALHEUR, OREGON.—The 13.7-mile segment (D) the 1.5-mile segment from the Ochoco from Bosonberg Creek to the Malheur National National Forest boundary to Upper Falls as a Forest boundary; to be administered by the Sec- scenic river; to be administered by the Sec- retary of Agriculture in the following classes: retary of the Interior; (A) The 7-mile segment from Bosonberg (E) the 11.1-mile segment from Upper Falls Creek to Malheur Ford as a scenic river; and to Committee Creek as a wild river; to be ad- (B) the 6.7-mile segment from Malheur Ford ministered by the Secretary of the Interior; to the Malheur National Forest boundary as a and wild river. (F) the 5-mile segment from Committee Creek to one mile from its confluence with the (84) MCKENZIE, OREGON.—The 12.7-mile seg- Crooked River as a recreational river; to be ment from Clear Lake to Scott Creek; to be ad- administered by the Secretary of the Interior. ministered by the Secretary of Agriculture in the following classes: (88) NORTH FORK JOHN DAY, OREGON.—The 54.1- (A) The 1.8-mile segment from Clear Lake to mile segment from its headwaters in the North the head of maximum pool at Carmen Res- Fork of the John Day Wilderness Area at section ervoir as a recreational river; 13, township 8 south, range 36 east, to its con- (B) the 4.3-mile segment from a point 100 fluence with Camas Creek in the following class- feet downstream from Carmen Dam to the es: maximum pool at Trail Bridge Reservoir as a (A) The 3.5-mile segment from its head- recreational river; and waters in the North Fork of the John Day Wil- (C) the 6.6-mile segment from the develop- ments at the base of the Trail Bridge Res- 4 So in original. Probably should be ‘‘to be administered by’’. § 1274 TITLE 16—CONSERVATION Page 1604

derness at section 13, township 8 south, range (A) The 25.4-mile segment from the Soda 36 east, to the North Fork of the John Day Springs Powerhouse to the Umpqua National Wilderness boundary as a wild river; to be ad- Forest boundary as a recreational river; to be ministered by the Secretary of Agriculture; administered by the Secretary of Agriculture; (B) the 7.5-mile segment from the North and Fork of the John Day Wilderness boundary to (B) the 8.4-mile segment from the Umpqua Trail Creek as a recreational river; to be ad- National Forest boundary to its confluence ministered by the Secretary of Agriculture; with Rock Creek as a recreational river; to be (C) the 24.3-mile segment from Trail Creek administered by the Secretary of the Interior. to Big Creek as a wild river; to be adminis- (96) POWDER, OREGON.—The 11.7-mile segment tered by the Secretary of Agriculture; from Thief Valley Dam to the Highway 203 (D) the 10.5-mile segment from Big Creek to bridge as a scenic river; to be administered by Texas Bar Creek as a scenic river; to be ad- the Secretary of the Interior. ministered by the Secretary of Agriculture; (97) QUARTZVILLE CREEK, OREGON.—The 12-mile and segment from the Willamette National Forest (E) the 8.3-mile segment from Texas Bar boundary to slack water in Green Peter Res- Creek to its confluence with Camas Creek as a ervoir as a recreational river; to be administered recreational river; to be administered by the by the Secretary of the Interior. Secretary of Agriculture. (98) ROARING, OREGON.—The 13.7-mile segment (89) NORTH FORK MALHEUR, OREGON.—The 25.5- from its headwaters to its confluence with the mile segment from its headwaters to the Clackamas River; to be administered by the Sec- Malheur National Forest boundary as a scenic retary of Agriculture in the following classes: river; to be administered by the Secretary of Ag- (A) The 13.5-mile segment from its head- riculture. waters to one-quarter mile upstream of the (90) NORTH FORK OF THE MIDDLE FORK OF THE mouth as a wild river; and (B) the 0.2-mile segment from one-quarter WILLAMETTE, OREGON.—The 42.3-mile segment mile upstream of the mouth to its confluence from Waldo Lake to the Willamette National with the Clackamas River as a recreational Forest boundary; to be administered by the Sec- river. retary of Agriculture in the following classes: (A) The 8.8-mile segment from Waldo Lake (99) SALMON, OREGON.—The 33.5-mile segment to the south section line of section 36, town- from its headwaters to its confluence with the ship 19 south, range 51⁄2 east as a wild river; Sandy River in the following classes: (B) the 6.5-mile segment from the south sec- (A) The 7-mile segment from its headwaters tion line of section 36, township 19 south, to the south boundary line of section 6, town- range 51⁄2 east to Fisher Creek as a scenic ship 4 south, range 9 east as a recreational river; and river; to be administered by the Secretary of (C) the 27-mile segment from Fisher Creek to Agriculture: Provided, That designation and the Willamette National Forest boundary as a classification shall not preclude the Secretary recreational river. from exercising discretion to approve the con- struction, operation, and maintenance of ski (91) NORTH FORK OWYHEE, OREGON.—The 8-mile lifts, ski runs, and associated facilities for the segment from the Oregon-Idaho State line to its land comprising the Timberline Lodge Winter confluence with the Owyhee River as a wild Sports Area insofar as such construction does river; to be administered by the Secretary of the not involve water resources projects; Interior. (B) the 15-mile segment from the south (92) NORTH FORK SMITH, OREGON.—The 13-mile boundary line at section 6, township 4 south, segment from its headwaters to the Oregon-Cali- range 9 east to the junction with the South fornia State line; to be administered by the Sec- Fork of the Salmon River as a wild river; to be retary of Agriculture in the following classes: administered by the Secretary of Agriculture; (A) The 6.5-mile segment from its head- (C) the 3.5-mile segment from the junction waters to Horse Creek as a wild river; with the south fork of the Salmon River to the (B) the 4.5-mile segment from Horse Creek to Mt. Hood National Forest boundary as a rec- Baldface Creek as a scenic river; and reational river; to be administered by the Sec- (C) the 2-mile segment from Baldface Creek retary of Agriculture; to the Oregon-California State line as a wild (D) the 3.2-mile segment from the Mt. Hood river. National Forest boundary to Lymp Creek as a (93) NORTH FORK SPRAGUE, OREGON.—The 15- recreational river; to be administered by the mile segment from the head of River Spring in Secretary of the Interior; and the southwest quarter of section 15, township 35 (E) the 4.8-mile segment from Lymp Creek south, range 16 east, to the northwest quarter of to its confluence with the Sandy River as a the southwest quarter of section 11, township 35 scenic river; to be administered by the Sec- south, range 15 east, as a scenic river; to be ad- retary of the Interior. ministered by the Secretary of Agriculture. (100) SANDY, OREGON.—Those portions as fol- (94) NORTH POWDER, OREGON.—The 6-mile seg- lows: ment from its headwaters to the Wallowa-Whit- (A) The 4.5-mile segment from its head- man National Forest boundary at River Mile 20 waters to the section line between sections 15 as a scenic river; to be administered by the Sec- and 22, township 2 south, range 8 east as a wild retary of Agriculture. river; to be administered by the Secretary of (95) NORTH UMPQUA, OREGON.—The 33.8-mile Agriculture; segment from the Soda Springs Powerhouse to (B) the 7.9-mile segment from the section Rock Creek in the following classes: line between sections 15 and 22, township 2 Page 1605 TITLE 16—CONSERVATION § 1274

south, range 8 east to the Mt. Hood National (A) The 0.5-mile segment from the Crater Forest boundary at the west section line of Lake National Park boundary to approxi- section 26, township 2 south, range 7 east as a mately 0.1-mile downstream from the forest recreational river; to be administered by the road 6530760 (West Lake Road) crossing as a Secretary of Agriculture; and scenic river; (C) the 12.5-mile segment from the east (B) the 6.1-mile segment from approximately boundary of sections 25 and 36, township 1 0.1-mile downstream from the forest road south, range 4 east in Clackamas County near 6530760 (West Lake Road) crossing to Minehaha Dodge Park, downstream to the west line of Creek as a wild river; and the east half of the northeast quarter of sec- (C) the 33.7-mile segment from Minehaha tion 6, township 1 south, range 4 east, in Mult- Creek to the Rogue River National Forest nomah County at Dabney State Park, the boundary as a scenic river. upper 3.8 miles as a scenic river and the lower (105) WENAHA, OREGON.—The 21.55-mile seg- 8.7 miles as a recreational river; both to be ad- ment from the confluence of the North Fork and ministered through a cooperative management the South Fork to its confluence with the agreement between the State of Oregon, the Grande Ronde River; to be administered by the Secretary of the Interior and the Counties of Secretary of Agriculture in the following class- Multnomah and Clackamas in accordance with section 1281(e) of this title. es: (A) The 18.7-mile segment from the con- (101) SOUTH FORK JOHN DAY, OREGON.—The 47- fluence of the North Fork and South Fork to mile segment from the Malheur National Forest the Umatilla National Forest as a wild river; to Smokey Creek as a recreational river; to be (B) the 2.7-mile segment from the Umatilla administered by the Secretary of the Interior. National Forest boundary to the easternmost (102) SQUAW CREEK, OREGON.—The 15.4-mile boundary of the Wenaha State Wildlife Area as segment from its source to the hydrologic a scenic area; and Gaging Station 800 feet upstream from the in- (C) the 0.15-mile segment from the eastern- take of the McAllister Ditch, including the Soap most boundary of the Wenaha State Wildlife Fork Squaw Creek, the North Fork, the South Area to the confluence with the Grande Ronde Fork, the East and West Forks of Park Creek, River as a recreational river. and Park Creek Fork; to be administered by the (106) WEST LITTLE OWYHEE, OREGON.—The 51- Secretary of Agriculture as follows: (A) The 6.6-mile segment and its tributaries mile segment from its headwaters to its con- from the source to the Three Sisters Wilder- fluence with Owyhee River as a wild river; to be ness boundary as a wild river; and administered by the Secretary of the Interior. (B) the 8.8-mile segment from the boundary (107) WHITE, OREGON.—The 46.5-mile segment of the Three Sisters Wilderness Area to the from its headwaters to its confluence with the hydrologic Gaging Station 800 feet upstream Deschutes River in the following classes: from the intake of the McAllister Ditch as a (A) The 2-mile segment from its headwaters scenic river: Provided, That nothing in this to the section line between sections 9 and 16, chapter shall prohibit the construction of fa- township 3 south, range 9 east, as a rec- cilities necessary for emergency protection for reational river; to be administered by the Sec- the town of Sisters relative to a rapid dis- retary of Agriculture: Provided, That designa- charge of Carver Lake if no other reasonable tion and classification shall not preclude the flood warning or control alternative exists. Secretary from exercising discretion to ap- prove construction, operation, and from exer- (103) SYCAN, OREGON.—The 59-mile segment cising discretion to approve construction, op- from the northeast quarter of section 5, town- eration, and maintenance of ski lifts, ski runs, ship 34 south, range 17 east to Coyote Bucket at and associated facilities for the land compris- the Fremont National Forest boundary; to be ing the Mt. Hood Winter Sports Area insofar administered by the Secretary of Agriculture in as such construction does not involve water the following classes: resource projects and is consistent with pro- (A) The 26.4-mile segment from the north- tecting the values for which the river was des- east quarter of section 5, township 34 south, ignated. range 17 east to the west section line of sec- (B) the 13.6-mile segment from the section 1 tion 22, township 32 south, range 14 ⁄2 east, as line between sections 9 and 16, township 3 a scenic river; south, range 9 east, to Deep Creek as a rec- (B) the 8.6-mile segment from the west sec- reational river; to be administered by the Sec- tion line of section 22, township 32 south, retary of Agriculture; range 14 east, to the Fremont National Forest (C) the 6.5-mile segment from Deep Creek to boundary in the southeast quarter of section the Mt. Hood National Forest boundary as a 10, township 33 south, range 13 east, as a rec- scenic river; to be administered by the Sec- reational river; and retary of Agriculture; (C) the 24-mile segment from the Fremont (D) the 17.5-mile segment from the Mt. Hood National Forest boundary in the southwest National Forest boundary to Three Mile Creek quarter of section 10, township 33 south, range as a scenic river; to be administered by the 13 east, to Coyote Bucket at the Fremont Na- Secretary of the Interior; tional Forest boundary, as a scenic river. (E) the 5.3-mile segment from Three Mile (104) UPPER ROGUE, OREGON.—The 40.3-mile Creek to River Mile 2.2 as a recreational river; segment from the Crater Lake National Park to be administered by the Secretary of the In- boundary to the Rogue River National Forest terior; and boundary; to be administered by the Secretary (F) the 1.6-mile segment from River Mile 1.6 of Agriculture in the following classes: to its confluence with the Deschutes River as § 1274 TITLE 16—CONSERVATION Page 1606

a recreational river; to be administered by the this paragraph or which constitute the bed or Secretary of the Interior. bank or are situated within one-quarter mile of (108) RIO CHAMA, NEW MEXICO.—The segment the ordinary highwater mark on each side of extending from El Vado Ranch launch site (im- such segments are withdrawn, subject to valid mediately south of El Vado Dam) downstream existing rights, from all forms of appropriation approximately 24.6 miles to elevation 6,353 feet under the mining laws and from operation of the above mean sea level; to be administered by the mineral leasing laws of the United States, and Secretary of Agriculture and the Secretary of no patent may be issued for the surface estate the Interior. For purposes of compliance with with respect to any mining claim located on the planning requirements of subsection (d) of such lands. Nothing in this paragraph shall be this section, the Cooperative Management Plan construed as precluding mining operations on for the river prepared by the Secretary of Agri- any valid existing claim, subject to applicable culture and the Secretary of the Interior may be regulations under section 1280 of this title. revised and amended to the extent necessary to (111) SMITH RIVER, CALIFORNIA.—The segment conform to the provisions of this chapter. The from the confluence of the Middle Fork Smith segment of the Rio Chama beginning at the El River and the North Fork Smith River to the Vado Ranch launch site downstream to the be- Six Rivers National Forest boundary, including ginning of Forest Service Road 151 shall be ad- the following segments of the mainstem and cer- ministered as a wild river and the segment tain tributaries, to be administered by the Sec- downstream from the beginning of Forest Serv- retary of Agriculture in the following classes: (A) The segment from the confluence of the ice Road 151 to elevation 6,353 feet shall be ad- Middle Fork Smith River and the South Fork ministered as a scenic river. Smith River to the National Forest boundary, (109) EAST FORK OF JEMEZ, NEW MEXICO.—The 11-mile segment from the Santa Fe National as a recreational river. (B) Rowdy Creek from the California-Oregon Forest boundary to its confluence with the Rio State line to the National Forest boundary, as San Antonio; to be administered by the Sec- a recreational river. retary of Agriculture in the following classifica- tions: (112) MIDDLE FORK SMITH RIVER, CALIFORNIA.— (A) the 2-mile segment from the Santa Fe The segment from the headwaters to its con- National Forest boundary to the second cross- fluence with the North Fork Smith River, in- ing of State Highway 4, near Las Conchas cluding the following segments of the mainstem Trailhead, as a recreational river; and and certain tributaries, to be administered by (B) the 4-mile segment from the second the Secretary of Agriculture in the following crossing of State Highway 4, near Las Conchas classes: Trailhead, to the third crossing of State High- (A) The segment from its headwaters about way 4, approximately one and one-quarter 3 miles south of Sanger Lake, as depicted on miles upstream from Jemez Falls, as a wild the 1956 USGS 15° Preston Peak topographic river; and map, to the center of section 7, T. 17 N., R. 5 (C) the 5-mile segment from the third cross- E., as a wild river. ing of State Highway 4, approximately one and (B) The segment from the center of section one-quarter miles upstream from Jemez Falls, 7, T. 17 N., R. 5 E., to the center of section 6, to its confluence with the Rio San Antonio, as T. 17 N., R. 5 E., as a scenic river. a scenic river. (C) The segment from the center of section 6, T. 17 N., R. 5 E., to one-half mile upstream After June 6, 1990, Federal lands within the from its confluence with Knopki Creek, as a boundaries of the segments designated under wild river. this paragraph or which constitute the bed or (D) The segment from one-half mile up- bank or are situated within one-quarter mile of stream of its confluence with Knopki Creek to the ordinary highwater mark on each side of its confluence with the South Fork Smith such segments are withdrawn, subject to valid River, as a recreational river. existing rights, from all forms of appropriation (E) Myrtle Creek from its headwaters in sec- under the mining laws and from operation of the tion 9, T. 17 N., R. 1 E., as depicted on the 1952 mineral leasing laws of the United States, and USGS 15° Crescent City topographic map, to no patent may be issued for the surface estate the middle of section 28, T. 17 N., R. 1 E., as a with respect to any mining claim located on scenic river. such lands. Nothing in this paragraph shall be (F) Myrtle Creek from the middle of section construed as precluding mining operations on 28, T. 17 N., R. 1 E., to its confluence with the any valid existing claim, subject to applicable Middle Fork Smith River, as a wild river. regulations under section 1280 of this title. (G) Shelly Creek from its headwaters in sec- (110) PECOS RIVER, NEW MEXICO.—The 20.5-mile tion 1, T. 18 N., R., 3 E., as depicted on the 1951 segment from its headwaters to the townsite of USGS 15° Gasquet topographic map, to its con- Tererro; to be administered by the Secretary of fluence with Patrick Creek, as a recreational Agriculture in the following classifications: river. (A) the 13.5-mile segment from its head- (H) Kelly Creek from its headwaters in sec- waters to the Pecos Wilderness boundary, as a tion 32, T. 17 N., R. 3 E., as depicted on the 1951 wild river; and USGS 15° Gasquet topographic map, to its con- (B) the 7-mile segment from the Pecos Wil- fluence with the Middle Fork Smith River, as derness boundary to the townsite of Tererro, a scenic river. as a recreational river. (I) Packsaddle Creek from its headwaters After June 6, 1990, Federal lands within the about 0.8 miles southwest of Broken Rib boundaries of the segments designated under Mountain, as depicted on the 1956 USGS 15° Page 1607 TITLE 16—CONSERVATION § 1274

Preston Peak topographic map, to its con- (D) The segment from its confluence with fluence with the Middle Fork Smith River, as Stony Creek to its confluence with the Middle a scenic river. Fork Smith River, as a recreational river. (J) East Fork Patrick Creek from its head- (E) Diamond Creek from California-Oregon waters in section 10, T. 18 N., R. 3 E., as de- State line to its confluence with Bear Creek, picted on the 1951 USGS 15° Gasquet topo- as a recreational river. graphic map, to its confluence with the West (F) Diamond Creek from its confluence with Fork of Patrick Creek, as a recreational river. Bear Creek to its confluence with the North (K) West Fork Patrick Creek from its head- Fork Smith River, as a scenic river. waters in section 18, T. 18 N., R. 3 E., as de- (G) Bear Creek from its headwaters in sec- picted on the 1951 5 15° Gasquet topographic tion 24, T. 18 N., R. 2 E., as depicted on the 1951 map to its confluence with the East Fork Pat- USGS 15° Gasquet topographic map, to its con- rick Creek, as a recreational river. fluence with Diamond Creek, as a scenic river. (L) Little Jones Creek from its headwaters (H) Still Creek from its headwaters in sec- in section 34, T. 17 N., R. 3 E., as depicted on tion 11, T. 18 N., R. 1 E., as depicted on the 1952 the 1951 USGS 15° Gasquet topographic map to USGS 15° Crescent City topographic map, to its confluence with the Middle Fork Smith its confluence with the North Fork Smith River, as a recreational river. River, as a scenic river. (M) Griffin Creek from its headwaters about (I) North Fork Diamond Creek from the 0.2 miles southwest of Hazel View Summit, as California-Oregon State line to its confluence depicted on the 1956 USGS 15° Preston Peak with Diamond Creek, as a recreational river. topographic map, to its confluence with the (J) High Plateau Creek from its headwaters Middle Fork Smith River, as a recreational in section 26, T. 18 N., R. 2 E., as depicted on river. the 1951 USGS 15° Gasquet topographic map, to (N) Knopki Creek from its headwaters about its confluence with Diamond Creek, as a sce- 0.4 miles west of Sanger Peak, as depicted on nic river. the 1956 USGS 15° Preston Peak topographic (K) Stony Creek from its headwaters in sec- map, to its confluence with the Middle Fork tion 25, T. 18 N., R. 2 E., as depicted on the 1951 Smith River, as a recreational river. USGS 15° Gasquet topographic map, to its con- (O) Monkey Creek from its headwaters in fluence with the North Fork Smith River, as a the northeast quadrant of section 12, T. 18 N., scenic river. R. 3 E., as depicted on the 1951 USGS 15° (L) Peridotite Creek from its headwaters in Gasquet topographic map, to its confluence section 34, T. 18 N., R. 2 E., as depicted on the with the Middle Fork Smith River, as a rec- 1951 USGS 15° Gasquet topographic map, to its reational river. confluence with the North Fork Smith River, (P) Patrick Creek from the junction of East as a wild river. and West Forks of Patrick Creek to its con- fluence with Middle Fork Smith River, as a (114) SISKIYOU FORK SMITH RIVER, CALIFOR- recreational river. NIA.—The segment from its headwaters to its (Q) Hardscrabble Creek from its headwaters confluence with the Middle Fork Smith River, in the northeast quarter of section 2, T. 17 N., and the following tributaries, to be administered R. 1 E., as depicted on the 1952 USGS 15° Cres- by the Secretary of Agriculture in the following cent City topographic map, to its confluence classes: with the Middle Fork Smith River, as a rec- (A) The segment from its headwaters about reational river. 0.7 miles southeast of Broken Rib Mountain, as depicted on the 1956 USGS 15° Preston Peak (113) NORTH FORK SMITH RIVER, CALIFORNIA.— Topographic 6 map, to its confluence with the The segment from the California-Oregon State South Siskiyou Fork Smith River, as a wild line to its confluence with the Middle Fork river. Smith River, including the following segments (B) The segment from its confluence with of the mainstem and certain tributaries, to be the South Siskiyou Fork Smith River to its administered by the Secretary of Agriculture in confluence with the Middle Fork Smith River, the following classes: (A) The segment from the California-Oregon as a recreational river. (C) South Siskiyou Fork Smith River from State line to its confluence with an unnamed its headwaters about 0.6 miles southwest of tributary in the northeast quarter of section 5, Buck Lake, as depicted on the 1956 USGS 15° T. 18 N., R. 2 E., as depicted on the 1951 USGS Preston Peak topographic map, to its con- 15° Gasquet topographic map, as a wild river. (B) The segment from its confluence with an fluence with the Siskiyou Fork Smith River, unnamed tributary in the northeast quarter of as a wild river. section 5, T. 18 N., R. 2 E., to its southern-most (115) SOUTH FORK SMITH RIVER, CALIFORNIA.— intersection with the eastern section line of The segment from its headwaters to its con- section 5, T. 18 N., R. 2 E., as depicted on the fluence with the main stem of the Smith River, 1951 USGS 15° Gasquet topographic map, as a and the following tributaries, to be administered scenic river. by the Secretary of Agriculture in the following (C) The segment from its southern-most classes: intersection with the eastern section line of (A) The segment from its headwaters about section 5, T. 18 N., R. 2 E., as depicted on the 0.5 miles southwest of Bear Mountain, as de- 1951 USGS 15° Gasquet topographic map, to its picted on 7 1956 USGS 15° Preston Peak topo- confluence with Stony Creek, as a wild river. 6 So in original. Probably should not be capitalized. 5 So in original. Probably should be ‘‘1951 USGS’’. 7 So in original. Probably should be ‘‘on the’’. § 1274 TITLE 16—CONSERVATION Page 1608

graphic map, to Blackhawk Bar, as a wild (P) Buck Creek from the northeast corner of river. section 8, T. 14 N., R. 3 E., to its confluence (B) The segment from Blackhawk Bar to its with the South Fork Smith River, as a wild confluence with the main stem of the Smith river. River, as a recreational river. (Q) Muzzleloader Creek from its headwaters (C) Williams Creek from its headwaters in in section 2, T. 15 N., R. 3 E., as depicted on section 31, T. 14 N., R. 4 E., as depicted on the the 1952 USGS 15° Ship Mountain topographic 1952 USGS 15° Ship Mountain topographic map, to its confluence with Jones Creek, as a map, to its confluence with Eightmile Creek, recreational river. as a wild river. (R) Canthook Creek from its headwaters in (D) Eightmile Creek from its headwaters in section 2, T. 15 N., R. 2 E., as depicted in 8 the section 29, T. 14 N., R. 4 E., as depicted on the 1952 USGS 15° Ship Mountain topographic 1955 USGS 15° Dillon Mtn. topographic map, to map, to its confluence with the South Fork its confluence with the South Fork Smith Smith River, as a recreational river. River, as a wild river. (S) Rock Creek from the national forest (E) Harrington Creek from its source to its boundary in section 6, T. 15 N., R. 2 E., as de- confluence with the South Fork Smith River, picted on the 1952 USGS 15° Ship Mountain as a wild river. topographic map, to its confluence with the (F) Prescott Fork of the Smith River from South Fork Smith River, as a recreational its headwaters about 0.5 miles southeast of Is- river. land Lake, as depicted on the 1955 USGS 15° (T) Blackhawk Creek from its headwaters in Dillon Mtn. topographic map, to its confluence section 21, T. 15 N., R. 2 E., as depicted on the with the South Fork Smith River, as a wild 1952 USGS 15° Ship Mountain topographic river. map, to its confluence with the South Fork (G) Quartz Creek from its headwaters in sec- Smith River, as a recreational river. tion 31, T. 16 N., R. 4 E., as depicted on the 1952 15° USGS Ship Mountain topographic map, to (116) CLARKS FORK, WYOMING.—(A) The twenty its confluence with the South Fork Smith and five-tenths-mile segment from the west River, as a recreational river. boundary of section 3, township 56 north, range (H) Jones Creek from its headwaters in sec- 106 west at the Crandall Creek Bridge down- tion 36, T. 16 N., R. 3 E., as depicted on the 1952 stream to the north boundary of section 13, USGS 15° Ship Mountain topographic map, to township 56 north, range 104 west at Clarks Fork its confluence with the South Fork Smith Canyon; to be administered by the Secretary of River, as a recreational river. Agriculture as a wild river. Notwithstanding (I) Hurdygurdy Creek from its headwaters subsection (b) of this section, the boundary of about 0.4 miles southwest of Bear Basin Butte the segment shall include all land within four as depicted on the 1956 USGS 15° Preston Peak hundred and forty yards from the ordinary high topographic map, to its confluence with the water mark on both sides of the river. No land South Fork Smith River, as a recreational or interest in land may be acquired with respect river. to the segment without the consent of the owner (J) Gordon Creek from its headwaters in sec- thereof. For the purposes of carrying out this tion 18, T. 16 N., R. 3 E., as depicted on the 1951 paragraph, there is authorized to be appro- USGS 15° Gasquet topographic map, to its con- priated $500,000 for development and $750,000 for fluence with the South Fork Smith River, as a the acquisition of land and interests therein. recreational river. (B) Designation of a segment of the Clarks (K) Coon Creek from the junction of its two Fork by this paragraph as a component of the headwaters tributaries in the southeast quad- Wild and Scenic Rivers System shall not be uti- rant of section 31, T. 17 N., R. 3 E., as depicted lized in any Federal proceeding, whether con- on the 1951 USGS 15° Gasquet topographic cerning a license, permit, right-of-way, or any map, to its confluence with the South Fork other Federal action, as a reason or basis to pro- Smith River, as a recreational river. hibit the development or operation of any water (L) Craigs Creek from its headwaters in sec- impoundment, diversion facility, or hydro- tion 36, T. 17 N., R. 2 E., as depicted on the 1951 electric power and transmission facility located USGS 15° Gasquet topographic map, to its con- entirely downstream from the segment of the fluence with the South Fork Smith River, as a river designated by this paragraph: Provided, recreational river. That water from any development shall not in- (M) Goose Creek from its headwaters in sec- trude upon such segment. Congress finds that tion 13, T. 13 N., R. 2 E., as depicted on the 1952 development of water impoundments, diversion USGS 15° Ship Mountain topographic map, to facilities, and hydroelectric power and trans- its confluence with the South Fork Smith mission facilities located entirely downstream River, as a recreational river. from the segment of the river is not incompat- (N) East Fork Goose Creek from its head- ible with its designation as a component of the waters in section 18, T. 13 N., R. 3 E., as de- Wild and Scenic Rivers System. picted on the 1952 USGS 15° Ship Mountain (C) The Secretary of Agriculture is directed to topographic map, to its confluence with Goose apply for the quantification of the water right Creek, as a recreational river. reserved by the inclusion of a portion of the (O) Buck Creek from its headwaters at Cedar Clarks Fork in the Wild and Scenic Rivers Sys- Camp Spring, as depicted on the 1952 USGS 15° tem in accordance with the procedural require- Ship Mountain topographic map, to the north- ments of the laws of the State of Wyoming: Pro- east corner of section 8, T. 14 N., R. 3 E., as a scenic river. 8 So in original. Probably should be ‘‘on’’. Page 1609 TITLE 16—CONSERVATION § 1274 vided, That, notwithstanding any provision of (D) The 0.5-mile segment from one quarter of the laws of the State of Wyoming otherwise ap- a mile upstream of Forest Development Road plicable to the granting and exercise of water 3119 to one quarter mile downstream of Forest rights, the purposes for which the Clarks Fork is Development Road 3119, as a scenic river. designated, as set forth in this chapter and this (E) The 4.9-mile segment from one quarter of paragraph, are declared to be beneficial uses and a mile downstream of Forest Development the priority date of such right shall be Novem- Road 3119 to McDonald Rapids, as a wild river. ber 28, 1990. (F) The 6.1-mile segment from McDonald (D) The comprehensive management plan de- Rapids to Lake Huron, as a recreational river. veloped under subsection (d) of this section for (122) INDIAN, MICHIGAN.—The 51-mile segment the segment designated by this paragraph shall from Hovey Lake to Indian Lake to be adminis- provide for all such measures as may be nec- tered by the Secretary of Agriculture in the fol- essary in the control of fire, insects, and dis- lowing classes: eases to fully protect the values for which the (A) The 12-mile segment from Hovey Lake to segment is designated as a wild river. Fish Lake, as a scenic river. (117) NIOBRARA, NEBRASKA.—(A) The 40-mile (B) The 39-mile segment from Fish Lake to segment from Borman Bridge southeast of Val- Indian Lake, as a recreational river. entine downstream to its confluence with Chim- ney Creek and the 30-mile segment from the riv- (123) MANISTEE, MICHIGAN.—The 26-mile seg- er’s confluence with Rock Creek downstream to ment from the Michigan DNR boat ramp below the State Highway 137 bridge, both segments to Tippy Dam to the Michigan State Highway 55 be classified as scenic and administered by the bridge, to be administered by the Secretary of Secretary of the Interior. That portion of the 40- Agriculture as a recreational river. mile segment designated by this subparagraph (124) ONTONAGON, MICHIGAN.—Segments of cer- located within the Fort Niobrara National Wild- tain tributaries, totaling 157.4 miles, to be ad- life Refuge shall continue to be managed by the ministered by the Secretary of Agriculture as Secretary through the Director of the United follows: States Fish and Wildlife Service. (A) The 46-mile segment of the East Branch (B) The 25-mile segment from the western Ontonagon from its origin at Spring Lake to boundary of Knox County to its confluence with the Ottawa National Forest boundary in the the Missouri River, including that segment of following classes: the Verdigre Creek from the north municipal (i) The 20.5-mile segment from its origin at boundary of Verdigre, Nebraska, to its con- Spring Lake to its confluence with an un- fluence with the Niobrara, to be administered by named stream in section 30, township 48 the Secretary of the Interior as a recreational north, range 37 west, as a recreational river. river. (ii) The 25.5-mile segment from its con- After consultation with State and local gov- fluence with an unnamed stream in section ernments and the interested public, the Sec- 30, township 48 north, range 37 west, to the retary shall take such action as is required Ottawa National Forest boundary, as a wild under subsection (b) of this section. river. (118) MISSOURI RIVER, NEBRASKA AND SOUTH (B) The 59.4-mile segment of the Middle DAKOTA.—The 39-mile segment from the head- Branch Ontonagon, from its origin at Crooked waters of Lewis and Clark Lake to the Ft. Ran- Lake to the northern boundary of the Ottawa dall Dam, to be administered by the Secretary National Forest in the following classes: of the Interior as a recreational river. (i) The 20-mile segment from its origin at (119) BEAR CREEK, MICHIGAN.—The 6.5-mile seg- Crooked Lake to Burned Dam, as a rec- ment from Coates Highway to the Manistee reational river. River, to be administered by the Secretary of (ii) The 8-mile segment from Burned Dam Agriculture as a scenic river. to Bond Falls Flowage, as a scenic river. (120) BLACK, MICHIGAN.—The 14-mile segment (iii) The 8-mile segment from Bond Falls from the Ottawa National Forest boundary to to Agate Falls, as a recreational river. Lake Superior, to be administered by the Sec- (iv) The 6-mile segment from Agate Falls retary of Agriculture as a scenic river. to Trout Creek, as a scenic river. (121) CARP, MICHIGAN.—The 27.8-mile segment (v) The 17.4-mile segment from Trout from the west section line of section 30, town- Creek to the northern boundary of the Ot- ship 43 north, range 5 west, to Lake Huron, to be tawa National Forest, as a wild river. administered by the Secretary of Agriculture in (C) The 37-mile segment of the Cisco Branch the following classes: (A) The 2.3-mile segment from the west sec- Ontonagon from its origin at Cisco Lake Dam tion line of section 30, township 43 north, to its confluence with Ten-Mile Creek south of range 5 west, to Forest Development Road 3458 Ewen in the following classes: (i) The 10-mile segment from the origin of in section 32, township 43 north, range 5 west, Cisco Branch Ontonagon at Cisco Lake Dam as a scenic river. (B) The 6.5-mile segment from the Forest to the County Road 527 crossing, as a rec- Development Road 3458 in section 32, township reational river. (ii) The 27-mile segment from the Forest 43 north, range 5 west, to Michigan State Development Road 527 crossing to the con- Highway 123, as a scenic river. (C) The 7.5-mile segment from Michigan fluence of the Cisco Branch and Ten-Mile State Highway 123 to one quarter of a mile up- Creek, as a scenic river. stream from Forest Development Road 3119, as (D) The 15-mile segment of the West Branch a wild river. Ontonagon from its confluence with Cascade § 1274 TITLE 16—CONSERVATION Page 1610

Falls to Victoria Reservoir, in the following north line of section 26, township 43 north, range classes: 19 west, to Lake Michigan, to be administered (i) The 10.5-mile segment from its con- by the Secretary of Agriculture in the following fluence with Cascade Falls to its confluence classes: with the South Branch Ontonagon, as a rec- (A) The 21.7-mile segment from the north reational river. line of section 26, township 43 north, range 19 (ii) The 4.5-mile segment from its con- west, to Forest Highway 13 as a scenic river. fluence with the South Branch Ontonagon to (B) The 22.2-mile segment from Forest High- Victoria Reservoir, as a recreational river. way 13 to Lake Michigan as a recreational river. Nothwithstanding 9 any limitation contained in this chapter, the Secretary is authorized to ac- (129) STURGEON, OTTAWA NATIONAL FOREST, quire lands and interests in lands which, as of MICHIGAN.—The 25-mile segment from its entry August 1, 1990, were owned by Upper Peninsula into the Ottawa National Forest to the northern Energy Corporation, and notwithstanding any boundary of the Ottawa National Forest, to be such limitation, such lands shall be retained and administered by the Secretary of Agriculture in managed by the Secretary as part of the Ottawa the following classes: National Forest, and those lands so acquired (A) The 16.5-mile segment from its entry which are within the boundaries of any segment into the Ottawa National Forest to Prickett designated under this paragraph shall be re- Lake, as a wild river. (B) The 8.5-mile segment from the outlet of tained and managed pursuant to this chapter. Prickett Lake Dam to the northern boundary (125) PAINT, MICHIGAN.—Segments of the main- of the Ottawa National Forest, as a scenic stream and certain tributaries, totaling 51 river. miles, to be administered by the Secretary of Agriculture as follows: (130) EAST BRANCH OF THE TAHQUAMENON, (A) The 6-mile segment of the main stem MICHIGAN.—The 13.2-mile segment from its ori- from the confluence of the North and South gin in section 8, township 45 north, range 5 west, Branches Paint to the Ottawa National Forest to the Hiawatha National Forest boundary, to boundary, as a recreational river. be administered by the Secretary of Agriculture (B) The 17-mile segment of the North Branch in the following classes: Paint from its origin at Mallard Lake to its (A) The 10-mile segment from its origin in confluence with the South Branch Paint, as a section 8, township 45 north, range 5 west, to recreational river. the center of section 20, township 46 north, (C) The 28-mile segment of the South Branch range 6 west, as a recreational river. Paint from its origin at Paint River Springs to (B) The 3.2-mile segment from the center of its confluence with the North Branch Paint, as section 20, township 46 north, range 6 west, to a recreational river. the boundary of the Hiawatha National For- est, as a wild river. (126) PINE, MICHIGAN.—The 25-mile segment from Lincoln Bridge to the east 1/16th line of (131) WHITEFISH, MICHIGAN.—Segments of the section 16, township 21 north, range 13 west, to mainstream and certain tributaries, totaling be administered by the Secretary of Agriculture 33.6 miles, to be administered by the Secretary as a scenic river. of Agriculture as follows: (A) The 11.1-mile segment of the mainstream (127) PRESQUE ISLE, MICHIGAN.—Segments of from its confluence with the East and West the mainstream and certain tributaries, totaling Branches of the Whitefish to Lake Michigan in 57 miles, to be administered by the Secretary of the following classes: Agriculture as follows: (i) The 9-mile segment from its confluence (A) The 23-mile segment of the mainstream, with the East and West Branches of the from the confluence of the East and West Whitefish to the center of section 16, town- Branches of Presque Isle to Minnewawa Falls, ship 41 north, range 21 west, as a scenic to be classified as follows: river. (i) The 17-mile segment from the con- (ii) The 2.1-mile segment from the center fluence of the East and West Branches of section 16, township 41 north, range 21 Presque Isle to Michigan State Highway 28, west, to Lake Michigan, as a recreational as a recreational river. river. (ii) The 6-mile segment from Michigan State Highway 28 to Minnewawa Falls, as a (B) The 15-mile segment of the East Branch scenic river. Whitefish from the crossing of County Road 003 in section 6, township 44 north, range 20 (B) The 14-mile segment of the East Branch west, to its confluence with the West Branch Presque Isle within the Ottawa National For- Whitefish, as a scenic river. est, as a recreational river. (C) The 7.5-mile segment of the West Branch (C) The 7-mile segment of the South Branch Whitefish from County Road 444 to its con- Presque Isle within the Ottawa National For- fluence with the East Branch Whitefish, as a est, as a recreational river. scenic river. (D) The 13-mile segment of the West Branch Presque Isle within the Ottawa National For- (132) YELLOW DOG, MICHIGAN.—The 4-mile seg- est, as a scenic river. ment from its origin at the outlet of Bulldog Lake Dam to the boundary of the Ottawa Na- (128) STURGEON, HIAWATHA NATIONAL FOREST, tional Forest, to be administered by the Sec- MICHIGAN.—The 43.9-mile segment from the retary of Agriculture as a wild river. (133) ALLEGHENY, PENNSYLVANIA.—The seg- 9 So in original. Probably should be ‘‘Notwithstanding’’. ment from Kinzua Dam downstream approxi- Page 1611 TITLE 16—CONSERVATION § 1274 mately 7 miles to the United States Route 6 propriate arrangement with the Secretary of Bridge, and the segment from Buckaloons Agriculture or an appropriate official of the Recreation Area at Irvine, Pennsylvania, down- State of Arkansas. stream approximately 47 miles to the southern (137) HURRICANE CREEK, ARKANSAS.—The 15.5- end of Alcorn Island at Oil City, to be adminis- mile segment from its origin in section 1, town- tered by the Secretary of Agriculture as a rec- ship 13 north, range 21 west, to its confluence reational river through a cooperative agreement with Big Piney Creek, to be administered by the with the Commonwealth of Pennsylvania and Secretary of Agriculture in the following class- the counties of Warren, Forest, and Venango, as es: provided under section 1281(e) of this title; and (A) The 11.8-mile segment from its origin in the segment from the sewage treatment plant at section 1, township 13 north, range 21 west, to Franklin downstream approximately 31 miles to the western boundary of the private land bor- the refinery at Emlenton, Pennsylvania, to be dering Hurricane Creek Wilderness, as a scenic administered by the Secretary of Agriculture as river. a recreational river through a cooperative (B) The 2.4-mile segment from the western agreement with the Commonwealth of Pennsyl- boundary of the private land bordering the vania and Venango County, as provided under Hurricane Creek Wilderness to the Hurricane section 1281(e) of this title. Creek Wilderness boundary, as a wild river. (134) BIG PINEY CREEK, ARKANSAS.—The 45.2- (C) The 1.3-mile segment from the Hurricane mile segment from its origin in section 27, town- Creek Wilderness boundary to its confluence ship 13 north, range 23 west, to the Ozark Na- with Big Piney Creek, as a scenic river. tional Forest boundary, to be administered by the Secretary of Agriculture as a scenic river. (138) LITTLE MISSOURI RIVER, ARKANSAS.—Seg- (135) BUFFALO RIVER, ARKANSAS.—The 15.8- ments totaling 15.7 miles, to be administered by mile segment from its origin in section 22, town- the Secretary of Agriculture in the following ship 14 north, range 24 west, to the Ozark Na- classes: tional Forest boundary, to be administered by (A) The 11.3-mile segment from its origin in the Secretary of Agriculture in the following the northwest 1⁄4 of section 32, township 3 classes: south, range 28 west, to the west section line (A) The 6.4-mile segment from its origin in of section 22, township 4 south, range 27 west, section 22, township 14 north, range 24 west, to as a scenic river. the western boundary of the Upper Buffalo (B) The 4.4-mile segment from the north line Wilderness, as a scenic river. of the southeast 1⁄4 of the southeast 1⁄4 of sec- (B) The 9.4-mile segment from the western tion 28, township 4 south, range 27 west, to the boundary of the Upper Buffalo Wilderness to north line of the northwest 1⁄4 of the southwest the Ozark National Forest boundary, as a wild 1⁄4 of section 5, township 5 south, range 27 west, river. as a wild river. (136) COSSATOT RIVER, ARKANSAS.—Segments (139) MULBERRY RIVER, ARKANSAS.—The 56.0- of the main stem and certain tributaries, total- mile segment from its origin in section 32, town- ing 20.1 miles, to be administered as follows: ship 13 north, range 23 west, to the Ozark Na- (A) The 4.2-mile segment of the main stem tional Forest boundary, to be administered by from its confluence with Mine Creek to the the Secretary of Agriculture in the following Caney Creek Wilderness Boundary on the classes: north section line of section 13, township 4 (A) The 36.6-mile segment from its origin in south, range 30 west, to be administered by the section 32, township 13 north, range 23 west, to Secretary of Agriculture as a recreational Big Eddy Hollow in section 3, township 11 river. north, range 27 west, as a recreational river. (B) The 6.9-mile segment of the main stem (B) The 19.4-mile segment from Big Eddy from the Caney Creek Wilderness Boundary on Hollow in section 3, township 11 north, range the north section line of section 13, township 27 west, to the Ozark National Forest bound- 4 south, range 30 west, to the south section ary, as a scenic river. line of section 20, township 4 south, range 30 west, to be administered by the Secretary of (140) NORTH SYLAMORE CREEK, ARKANSAS.—The Agriculture as a scenic river. 14.5-mile segment from the Clifty Canyon Botan- (C) The 4.4-mile segment of the Brushy ical Area boundary to its confluence with the Creek tributary from the north line of the White River, to be administered by the Sec- south 1⁄2 of the southeast 1⁄4 of section 7, town- retary of Agriculture as a scenic river. ship 4 south, range 30 west, to the south sec- (141) RICHLAND CREEK, ARKANSAS.—The 16.5- tion line of section 20, township 4 south, range mile segment from its origin in section 35, town- 30 west, to be administered by the Secretary of ship 13 north, range 20 west, to the northern Agriculture as a scenic river. boundary of section 32, township 14 north, range (D) The 4.6-mile segment of the main stem 18 west, to be administered by the Secretary of from the State Highway 4 bridge to Duchett’s Agriculture in the following classes: Ford, to be administered by the Secretary of (A) The 7.8-mile segment from its origin in the Army as a scenic river consistent with the section 35, township 13 north, range 20 west, to operation of Gillham Dam (as authorized by the western boundary of the Richland Creek section 203 of the Flood Control Act of 1958 Wilderness, as a scenic river. (Public Law 85–500)). For purposes of manage- (B) The 5.3-mile segment from the western ment of such segment, the Secretary of the boundary of the Richland Creek Wilderness to Army may enter into a cooperative agreement the eastern boundary of the Richland Creek or memorandum of understanding or other ap- Wilderness, as a wild river. § 1274 TITLE 16—CONSERVATION Page 1612

(C) The 3.4-mile segment from the eastern (K) Gravelly Run, from its confluence with boundary of the Richland Creek Wilderness to Great Egg Harbor River to Pennsylvania Rail- the northern boundary of section 32, township road Right-of-Way,10 approximately 2.7 miles, 14 north, range 18 west, as a scenic river. as a recreational river; (142) SESPE CREEK, CALIFORNIA.—The 4-mile (L) Miry Run, from its confluence with segment of the main stem of the creek from its Great Egg Harbor River to Asbury Road, ap- confluence with Rock Creek and Howard Creek proximately 1.7 miles, as a recreational river; downstream to its confluence with Trout Creek, (M) South River, from its confluence with to be administered by the Secretary of Agri- Great Egg Harbor River to Main Avenue, ap- culture as a scenic river; and the 27.5-mile seg- proximately 13.5 miles, as a recreational river; ment of the main stem of the creek extending (N) Stephen Creek, from its confluence with from its confluence with Trout Creek down- Great Egg Harbor River to New Jersey Route stream to where it leaves section 26, township 5 50, approximately 2.3 miles, as a recreational north, range 20 west, to be administered by the river; Secretary of Agriculture as a wild river. (O) Gibson Creek, from its confluence with (143) SISQUOC RIVER, CALIFORNIA.—The 33-mile Great Egg Harbor River to First Avenue, ap- segment of the main stem of the river extending proximately 5.6 miles, as a recreational river; from its origin downstream to the Los Padres (P) English Creek, from its confluence with Forest boundary, to be administered by the Sec- Great Egg Harbor River to Zion Road, approxi- retary of Agriculture as a wild river. mately 3.5 miles, as a recreational river; (144) BIG SUR RIVER, CALIFORNIA.—The main (Q) Lakes Creek, from its confluence with stems of the South Fork and North Fork of the Great Egg Harbor River to the dam, approxi- Big Sur River from their headwaters to their mately 2.2 miles, as a recreational river; confluence and the main stem of the river from (R) Middle River, from its confluence with the confluence of the South and North Forks Great Egg Harbor River to the levee, approxi- downstream to the boundary of the Ventana mately 5.6 miles, as a scenic river; Wilderness in Los Padres National Forest, for a (S) Patcong Creek, from its confluence with total distance of approximately 19.5 miles, to be Great Egg Harbor River to Garden State Park- administered by the Secretary of Agriculture as way, approximately 2.8 miles, as a rec- a wild river. reational river; (145) GREAT EGG HARBOR, NEW JERSEY.—39.5 (T) Tuckahoe River (lower segment) from its miles of the main stem to be administered by confluence with Great Egg Harbor River to the the Secretary of the Interior in the following Route 50 bridge,11 approximately 9 miles, as a classifications: scenic river; (A) from the mouth of the Patcong Creek to (U) Tuckahoe River, from the Route 50 the mouth of Perch Cove Run, approximately Bridge to Route 49 Bridge, approximately 7.3 10 miles, as a scenic river; miles, as a recreational river; and (B) from Perch Cove Run to the Mill Street (V) Cedar Swamp Creek, from its confluence Bridge, approximately 5.5 miles, as a rec- with Tuckahoe River to headwaters, approxi- reational river; mately 6 miles, as a scenic river. (C) from Lake Lenape to the Atlantic City Expressway, approximately 21 miles, as a rec- (146) THE MAURICE RIVER, MIDDLE SEGMENT.— reational river; and From Route 670 Bridge at Mauricetown to 3.6 (D) from Williamstown-New Freedom Road miles upstream (at drainage ditch just upstream to the Pennsylvania Railroad right-of-way, ap- of Fralinger Farm), approximately 3.8 miles to proximately 3 miles, as a recreational river, be administered by the Secretary of the Interior and as a scenic river. (147) THE MAURICE RIVER, MIDDLE SEGMENT.— 89.5 miles of the following tributaries to be ad- From the drainage ditch just upstream of ministered by the Secretary of the Interior in Fralinger Farm to one-half mile upstream from the following classifications: the United States Geological Survey Station at (E) Squankum Branch from its confluence Burcham Farm, approximately 3.1 miles, to be with Great Egg Harbor River to Malaga Road, administered by the Secretary of the Interior as approximately 4.5 miles, as a recreational a recreational river. river; (148) THE MAURICE RIVER, UPPER SEGMENT.— (F) Big Bridge Branch, from its confluence with Great Egg Harbor River to headwaters, From one-half mile upstream from the United approximately 2.2 miles, as a recreational States Geological Survey Station at Burcham river; Farm to the south side of the Millville sewage (G) Penny Pot Stream Branch, from its con- treatment plant, approximately 3.6 miles, to be fluence with Great Egg Harbor River to 14th administered by the Secretary of the Interior as Street, approximately 4.1 miles, as a rec- a scenic river. reational river; (149) THE MENANTICO CREEK, LOWER SEG- (H) Deep Run, from its confluence with MENT.—From its confluence with the Maurice Great Egg Harbor River to Pancoast Mill River to the Route 55 Bridge, approximately 1.4 Road, approximately 5.4 miles, as a rec- miles, to be administered by the Secretary of reational river; the Interior as a recreational river. (I) Mare Run, from its confluence with Great (150) THE MENANTICO CREEK, UPPER SEG- Egg Harbor River to Weymouth Avenue, ap- MENT.—From the Route 55 Bridge to the base of proximately 3 miles, as a recreational river; the impoundment at Menantico Lake, approxi- (J) Babcock Creek, from its confluence with Great Egg Harbor River to headwaters, ap- 10 So in original. Probably should not be capitalized. proximately 7.5 miles, as a recreational river; 11 So in original. Probably should be capitalized. Page 1613 TITLE 16—CONSERVATION § 1274 mately 6.5 miles, to be administered by the Sec- gway Borough limit, to an unnamed tributary in retary of the Interior as a scenic river. the backwaters of Piney Dam approximately 0.6 (151) MANUMUSKIN RIVER, LOWER SEGMENT.— miles downstream from Blyson Run, to be ad- From its confluence with the Maurice River to ministered by the Secretary of Agriculture in a point 2.0 miles upstream, to be administered the following classifications: by the Secretary of the Interior as a rec- (A) The approximately 8.6-mile segment of reational river. the main stem from the Allegheny National (152) MANUMUSKIN RIVER, UPPER SEGMENT.— Forest/State Game Lands Number 44 bound- From a point 2.0 miles upstream from its con- ary, located approximately 0.7 miles down- fluence with the Maurice River to its head- stream from the Ridgway Borough limit, to waters near Route 557, approximately 12.3 miles, Portland Mills, as a recreational river. to be administered by the Secretary of the Inte- (B) The approximately 8-mile segment of the rior as a scenic river. main stem from Portland Mills to the Alle- (153) MUSKEE CREEK, NEW JERSEY.—From its gheny National Forest boundary, located ap- confluence with the Maurice River to the Penn- proximately 0.8 miles downstream from Irwin sylvania Seashore Line Railroad Bridge, ap- Run, as a scenic river. proximately 2.7 miles, to be administered by the (C) The approximately 26-mile segment of Secretary of the Interior as a scenic river. the main stem from the Allegheny National (154)(A) RED RIVER, KENTUCKY.—The 19.4-mile Forest boundary, located approximately 0.8 segment of the Red River extending from the miles downstream from Irwin Run, to the Highway 746 Bridge to the School House Branch, State Game Lands 283 boundary, located ap- to be administered by the Secretary of Agri- proximately 0.9 miles downstream from the culture in the following classes: Cooksburg bridge, as a recreational river. (i) The 9.1-mile segment known as the (D) The approximately 9.1-mile segment of ‘‘Upper Gorge’’ from the Highway 746 Bridge to the main stem from the State Game Lands 283 Swift Camp Creek, as a wild river. This seg- boundary, located approximately 0.9 miles ment is identified as having the same bound- downstream from the Cooksburg bridge, to an ary as the Kentucky Wild River. unnamed tributary at the backwaters of Piney (ii) The 10.3-mile segment known as the Dam, located approximately 0.6 miles down- ‘‘Lower Gorge’’ from Swift Camp Creek to the stream from Blyson Run, as a scenic river. School House Branch, as a recreational river. (158) LAMPREY RIVER, NEW HAMPSHIRE.—The (B) There are authorized to be appropriated 23.5-mile segment extending from the Bunker such sums as are necessary to carry out this Pond Dam in Epping to the confluence with the paragraph. Piscassic River in the vicinity of the Durham- (155) RIO GRANDE, NEW MEXICO.—The main Newmarket town line (hereinafter in this para- stem from the southern boundary of the seg- graph referred to as the ‘‘segment’’) as a rec- ment of the Rio Grande designated pursuant to reational river. The segment shall be adminis- paragraph (4), downstream approximately 12 tered by the Secretary of the Interior through cooperative agreements between the Secretary miles to the west section line of Section 15, and the State of New Hampshire and its relevant Township 23 North, Range 10 East, to be admin- political subdivisions, namely the towns of Ep- istered by the Secretary of the Interior as a sce- ping, Durham, Lee, and Newmarket, pursuant to nic river. section 1281(e) of this title. The segment shall be (156) FARMINGTON RIVER, CONNECTICUT.—The managed in accordance with the Lamprey River 14-mile segment of the West Branch and main- Management Plan dated January 10, 1995, and stem extending from immediately below the such amendments thereto as the Secretary of Goodwin Dam and Hydroelectric Project in the Interior determines are consistent with this Hartland, Connecticut, to the downstream end chapter. Such plan shall be deemed to satisfy of the New Hartford-Canton, Connecticut, town the requirements for a comprehensive manage- line (hereinafter in this paragraph referred to as ment plan pursuant to subsection (d) of this sec- the ‘‘segment’’), as a recreational river, to be tion. administered by the Secretary of the Interior (159)(A) ELKHORN CREEK.—The 6.4-mile seg- through cooperative agreements between the ment traversing federally administered lands Secretary of the Interior and the State of Con- from that point along the Willamette National necticut and its relevant political subdivisions, Forest boundary on the common section line be- namely the Towns of Colebrook, Hartland, Bark- tween Sections 12 and 13, Township 9 South, hamsted, New Hartford, and Canton and the Range 4 East, Willamette Meridian, to that Hartford Metropolitan District Commission, point where the segment leaves Federal owner- pursuant to section 1281(e) of this title. The seg- ship along the Bureau of Land Management ment shall be managed in accordance with the boundary in Section 1, Township 9 South, Range Upper Farmington River Management Plan, 3 East, Willamette Meridian, in the following dated April 29, 1993, and such amendments there- classes: to as the Secretary of the Interior determines (i) a 5.8-mile wild river area, extending from are consistent with this chapter. Such plan shall that point along the Willamette National For- be deemed to satisfy the requirement for a com- est boundary on the common section line be- prehensive management plan pursuant to sub- tween Sections 12 and 13, Township 9 South, section (d) of this section. Range 4 East, Willamette Meridian, to its con- (157) CLARION RIVER, PENNSYLVANIA.—The 51.7- fluence with Buck Creek in Section 1, Town- mile segment of the main stem of the Clarion ship 9 South, Range 3 East, Willamette Merid- River from the Allegheny National Forest/State ian, to be administered as agreed on by the Game Lands Number 44 boundary, located ap- Secretaries of Agriculture and the Interior, or proximately 0.7 miles downstream from the Rid- as directed by the President; and § 1274 TITLE 16—CONSERVATION Page 1614

(ii) a 0.6-mile scenic river area, extending (ii) The 4.6 segment from Little Wilson from the confluence with Buck Creek in Sec- Creek downstream to the confluence of tion 1, Township 9 South, Range 3 East, Wil- Crusher Branch, as a wild river. lamette Meridian, to that point where the seg- (iii) The 15.8 segment from Crusher Branch ment leaves Federal ownership along the Bu- downstream to the confluence of Johns River, reau of Land Management boundary in Sec- as a recreational river. tion 1, Township 9 South, Range 3 East, Wil- (B) The Forest Service or any other agency of lamette Meridian, to be administered by the the Federal Government may not undertake Secretary of Interior, or as directed by the condemnation proceedings for the purpose of ac- President. quiring public right-of-way or access to Wilson (B) Notwithstanding subsection (b) of this sec- Creek against the private property of T. Henry tion, the lateral boundaries of both the wild Wilson, Jr., or his heirs or assigns, located in river area and the scenic river area along Elk- Avery County, North Carolina (within the area horn Creek shall include an average of not more 36°, 4 min., 21 sec. North 81°, 47 min., 37° West than 640 acres per mile measured from the ordi- and 36°, 3 min., 13 sec. North and 81° 45 min. 55 nary high water mark on both sides of the river. sec. West), in the area of Wilson Creek des- (160) SUDBURY, ASSABET, AND CONCORD RIVERS, ignated as a wild river. MASSACHUSETTS.—(A) The 29 miles of river seg- (162) WEKIVA RIVER, WEKIWA SPRINGS RUN, ments in Massachusetts, as follows: ROCK SPRINGS RUN, AND BLACK WATER CREEK, (i) The 14.9-mile segment of the Sudbury FLORIDA.—The 41.6-mile segments referred to in River beginning at the Danforth Street Bridge this paragraph, to be administered by the Sec- in the town of Framingham, downstream to retary of the Interior: the Route 2 Bridge in Concord, as a scenic (A) WEKIVA RIVER AND WEKIWA SPRINGS river. RUN.—The 14.9 miles of the Wekiva River, (ii) The 1.7-mile segment of the Sudbury along Wekiwa Springs Run from its confluence River from the Route 2 Bridge downstream to with the St. Johns River to Wekiwa Springs, its confluence with the Assabet River at Egg to be administered in the following classifica- Rock, as a recreational river. tions: (i) From the confluence with the St. Johns (iii) The 4.4-mile segment of the Assabet River to the southern boundary of the Lower River beginning 1,000 feet downstream from Wekiva River State Preserve, approximately the Damon Mill Dam in the town of Concord, 4.4 miles, as a wild river. to its confluence with the Sudbury River at 12 (ii) From the southern boundary of the Egg Rock in Concord; as a recreational river. Lower Wekiva River State Preserve to the (iv) The 8-mile segment of the Concord River northern boundary of Rock Springs State from Egg Rock at the confluence of the Sud- Reserve at the Wekiva River, approximately bury and Assabet Rivers downstream to the 3.4 miles, as a recreational river. Route 3 Bridge in the town of Billerica, as a (iii) From the northern boundary of Rock recreational river. Springs State Reserve at the Wekiva River (B) The segments referred to in subparagraph to the southern boundary of Rock Springs (A) shall be administered by the Secretary of State Reserve at the Wekiva River, approxi- the Interior in cooperation with the SUASCO mately 5.9 miles, as a wild river. River Stewardship Council provided for in the (iv) From the southern boundary of Rock plan referred to in subparagraph (C) through co- Springs State Reserve at the Wekiva River operative agreements under section 1281(e) of upstream along Wekiwa Springs Run to this title between the Secretary and the Com- Wekiwa Springs, approximately 1.2 miles, as monwealth of Massachusetts and its relevant a recreational river. political subdivisions (including the towns of (B) ROCK SPRINGS RUN.—The 8.8 miles from Framingham, Wayland, Sudbury, Lincoln, Con- the confluence of Rock Springs Run with the cord, Carlisle, Bedford, and Billerica). Wekiwa Springs Run forming the Wekiva (C) The segments referred to in subparagraph River to its headwaters at Rock Springs, to be (A) shall be managed in accordance with the administered in the following classifications: plan entitled ‘‘Sudbury, Assabet and Concord (i) From the confluence with Wekiwa Wild and Scenic River Study, River Conserva- Springs Run to the western boundary of tion Plan’’, dated March 16, 1995. The plan is Rock Springs Run State Reserve at Rock deemed to satisfy the requirement for a compre- Springs Run, approximately 6.9 miles, as a hensive management plan under subsection (d) wild river. of this section. (ii) From the western boundary of Rock (161) WILSON CREEK, NORTH CAROLINA.—(A) The Springs Run State Reserve at Rock Springs 23.3 mile segment of Wilson Creek in the State Run to Rock Springs, approximately 1.9 of North Carolina from its headwaters to its miles, as a recreational river. confluence with Johns River, to be administered (C) BLACK WATER CREEK.—The 17.9 miles by the Secretary of Agriculture in the following from the confluence of Black Water Creek classifications: with the Wekiva River to outflow from Lake (i) The 2.9 mile segment from its headwaters Norris, to be administered in the following below Calloway Peak downstream to the con- classifications: fluence of Little Wilson Creek, as a scenic (i) From the confluence with the Wekiva river. River to approximately .25 mile downstream of the Seminole State Forest road crossing, 12 So in original. The semicolon probably should be a comma. approximately 4.1 miles, as a wild river. Page 1615 TITLE 16—CONSERVATION § 1274

(ii) From approximately .25 mile down- (E) 14 miles of the middle branch, beginning stream of the Seminole State Forest road to at a point that is 500 feet south of the Borough approximately .25 mile upstream of the Sem- of West Grove wastewater treatment facility inole State Forest road crossing, approxi- downstream to the boundary of the White Clay mately .5 mile, as a scenic river. Creek Preserve in London Britain township, as (iii) From approximately .25 mile up- a recreational river. stream of the Seminole State Forest road (F) 2.1 miles of the middle branch that flow crossing to approximately .25 mile down- within the boundaries of the White Clay Creek stream of the old railroad grade crossing Preserve in London Britain township, as a sce- (approximately River Mile 9), approximately nic river. 4.4 miles, as a wild river. (G) 17.2 miles of the west branch, beginning (iv) From approximately .25 mile down- at the headwaters within Penn township down- stream of the old railroad grade crossing stream to the confluence with the middle (approximately River Mile 9), upstream to branch, as a recreational river. the boundary of Seminole State Forest (ap- (H) 12.7 miles of the main stem, excluding proximately River Mile 10.6), approximately Lamborn Run, that flow through the bound- 1.6 miles, as a scenic river. aries of the White Clay Creek Preserve, Penn- (v) From the boundary of Seminole State sylvania and Delaware, and White Clay Creek Forest (approximately River Mile 10.6) to ap- proximately .25 mile downstream of the State Park, Delaware, beginning at the con- State Road 44 crossing, approximately .9 fluence of the east and middle branches in mile, as a wild river. London Britain township, Pennsylvania, down- (vi) From approximately .25 mile down- stream to the northern boundary line of the stream of State Road 44 to approximately .25 city of Newark, Delaware, as a scenic river. mile upstream of the State Road 44A cross- (I) 5.4 miles of the main stem (including all ing, approximately .6 mile, as a recreational second order tributaries outside the bound- river. aries of the White Clay Creek Preserve and (vii) From approximately .25 mile up- White Clay Creek State Park), beginning at stream of the State Road 44A crossing to ap- the confluence of the east and middle branches proximately .25 mile downstream of the in London Britain township, Pennsylvania, Lake Norris Road crossing, approximately downstream to the northern boundary of the 4.7 miles, as a wild river. city of Newark, Delaware, as a recreational (viii) From approximately .25 mile down- river. stream of the Lake Norris Road crossing to (J) 16.8 miles of the main stem beginning at the outflow from Lake Norris, approxi- Paper Mill Road downstream to the Old Route mately 1.1 miles, as a recreational river. 4 bridge, as a recreational river. (K) 4.4 miles of the main stem beginning at (163) WHITE CLAY CREEK, DELAWARE AND PENN- the southern boundary of the property of the SYLVANIA.—The 190 miles of river segments of White Clay Creek (including tributaries of White corporation known as United Water Delaware Clay Creek and all second order tributaries of downstream to the confluence of White Clay the designated segments) in the States of Dela- Creek with the Christina River, as a rec- ware and Pennsylvania, as depicted on the rec- reational river. ommended designation and classification maps (L) 1.3 miles of Middle Run outside the (dated June 2000), to be administered by the Sec- boundaries of the Middle Run Natural Area, as retary of the Interior, as follows: a recreational river. (A) 30.8 miles of the east branch, including (M) 5.2 miles of Middle Run that flow within Trout Run, beginning at the headwaters with- the boundaries of the Middle Run Natural in West Marlborough township downstream to Area, as a scenic river. a point that is 500 feet north of the Borough of (N) 15.6 miles of Pike Creek, as a rec- Avondale wastewater treatment facility, as a reational river. recreational river. (O) 38.7 miles of Mill Creek, as a recreational (B) 15.0 miles of the east branch beginning at river. the southern boundary line of the Borough of (164) WILDHORSE AND KIGER CREEKS, OREGON.— Avondale to a point where the East Branch en- The following segments in the Steens Mountain ters New Garden Township at the Franklin Cooperative Management and Protection Area Township boundary line, including Walnut in the State of Oregon, to be administered by Run and Broad Run outside the boundaries of the Secretary of the Interior as wild rivers: the White Clay Creek Preserve, as a rec- (A) The 2.6-mile segment of Little Wildhorse reational river. Creek from its headwaters to its confluence (C) 4.0 miles of the east branch that flow with Wildhorse Creek. through the boundaries of the White Clay (B) The 7.0-mile segment of Wildhorse Creek Creek Preserve, Pennsylvania, beginning at from its headwaters, and including .36 stream the northern boundary line of London Britain miles into section 34, township 34 south, range township and downstream to the confluence of 33 east. the middle and east branches, as a scenic (C) The approximately 4.25-mile segment of river. Kiger Creek from its headwaters to the point (D) 6.8 miles of the middle branch, beginning at which it leaves the Steens Mountain Wil- at the headwaters within Londonderry town- derness Area within the Steens Mountain Co- ship downstream to a point that is 500 feet operative Management and Protection Area. north of the Borough of West Grove waste- water treatment facility, as a recreational (165) LOWER DELAWARE RIVER AND ASSOCIATED river. TRIBUTARIES, NEW JERSEY AND PENNSYLVANIA.— § 1274 TITLE 16—CONSERVATION Page 1616

(A) The 65.6 miles of river segments in New Jer- (ii) As a scenic river from La Mina falls 13 sey and Pennsylvania, consisting of— downstream to its confluence with the Rio (i) the segment from river mile 193.8 to the Mameyes, a total of approximately 1.2 miles. northern border of the city of Easton, Penn- (C) RIO ICACOS.—The segment of approxi- sylvania (approximately 10.5 miles), as a rec- mately 2.3 miles from its headwaters to the reational river; boundary of the Caribbean National Forest, to (ii) the segment from a point just south of be administered by the Secretary of Agri- the Gilbert Generating Station to a point just culture as a scenic river. north of the Point Pleasant Pumping Station (approximately 14.2 miles), as a recreational (167) WHITE SALMON RIVER, WASHINGTON.—The river; 20 miles of river segments of the main stem of (iii) the segment from the point just south of the White Salmon River and Cascade Creek, the Point Pleasant Pumping Station to a Washington, to be administered by the Sec- point 1,000 feet north of the Route 202 bridge retary of Agriculture in the following classifica- (approximately 6.3 miles), as a recreational tions: (A) The approximately 1.6-mile segment of river; the main stem of the White Salmon River (iv) the segment from a point 1,750 feet south from the headwaters on Mount Adams in sec- of the Route 202 bridge to the southern border tion 17, township 8 north, range 10 east, down- of the town of New Hope, Pennsylvania (ap- stream to the Mount Adams Wilderness bound- proximately 1.9 miles), as a recreational river; ary as a wild river. (v) the segment from the southern boundary (B) The approximately 5.1-mile segment of of the town of New Hope, Pennsylvania, to the Cascade Creek from its headwaters on Mount town of Washington Crossing, Pennsylvania Adams in section 10, township 8 north, range (approximately 6 miles), as a recreational 10 east, downstream to the Mount Adams Wil- river; derness boundary as a wild river. (vi) Tinicum Creek (approximately 14.7 (C) The approximately 1.5-mile segment of miles), as a scenic river; Cascade Creek from the Mount Adams Wilder- (vii) Tohickon Creek from the Lake ness boundary downstream to its confluence Nockamixon Dam to the Delaware River (ap- with the White Salmon River as a scenic river. proximately 10.7 miles), as a scenic river; and (D) The approximately 11.8-mile segment of (viii) Paunacussing Creek in Solebury Town- the main stem of the White Salmon River ship (approximately 3 miles), as a recreational from the Mount Adams Wilderness boundary river. downstream to the Gifford Pinchot National (B) ADMINISTRATION.—The river segments re- Forest boundary as a scenic river. ferred to in subparagraph (A) shall be adminis- (168) BLACK BUTTE RIVER, CALIFORNIA.—The tered by the Secretary of the Interior. Notwith- following segments of the Black Butte River in standing section 1281(c) of this title, the river the State of California, to be administered by segments shall not be administered as part of the Secretary of Agriculture: the National Park System. (A) The 16 miles of Black Butte River, from (166) RIVERS OF CARIBBEAN NATIONAL FOREST, the Mendocino County Line to its confluence PUERTO RICO.— with Jumpoff Creek, as a wild river. (A) RIO MAMEYES.—The segment of approxi- (B) The 3.5 miles of Black Butte River from mately 4.5 miles from its headwaters in the its confluence with Jumpoff Creek to its con- Ban˜ o de Oro Research Natural Area to the fluence with Middle Eel River, as a scenic boundary of the Caribbean National Forest, to river. be administered by the Secretary of Agri- (C) The 1.5 miles of Cold Creek from the culture as follows: Mendocino County Line to its confluence with (i) As a wild river from its headwaters in Black Butte River, as a wild river. the Ban˜ o de Oro Research Natural Area to (169) MUSCONETCONG RIVER, NEW JERSEY.— the crossing point of Trail No. 24/11 (approxi- (A) DESIGNATION.—The 24.2 miles of river mately 500 feet upstream from the con- segments in New Jersey, consisting of— fluence with the Rio de La Mina), a total of (i) the approximately 3.5-mile segment approximately 2.1 miles. from Saxton Falls to the Route 46 bridge, to (ii) As a scenic river from the crossing be administered by the Secretary of the In- point of Trail No. 24/11 to the access point of terior as a scenic river; and Trail No. 7, a total of approximately 1.4 (ii) the approximately 20.7-mile segment miles. from the Kings Highway bridge to the rail- (iii) As a recreational river from the access road tunnels at Musconetcong Gorge, to be point of Trail No. 7 to the national forest administered by the Secretary of the Inte- boundary, a total of approximately 1.0 miles. rior as a recreational river. (B) RIO DE LA MINA.—The segment of ap- (B) ADMINISTRATION.—Notwithstanding sec- proximately 2.1 miles from its headwaters to tion 1281(c) of this title, the river segments its confluence with the Rio Mameyes, to be ad- designated under subparagraph (A) shall not ministered by the Secretary of Agriculture as be administered as part of the National Park follows: System. (i) As a recreational river from its head- (170) EIGHTMILE RIVER, CONNECTICUT.—Seg- waters in the El Yunque Recreation Area ments of the main stem and specified tributaries downstream to La Mina Falls, a total of ap- proximately 0.9 miles. 13 So in original. Probably should be capitalized. Page 1617 TITLE 16—CONSERVATION § 1274 of the Eightmile River in the State of Connecti- Wilderness boundary to the western edge of cut, totaling approximately 25.3 miles, to be ad- section 20, township 2 south, range 12 east as ministered by the Secretary of the Interior as a wild river. follows: (iv) The 0.2-mile segment from the western (A) The entire 10.8-mile segment of the main edge of section 20, township 2 south, range 12 stem, starting at its confluence with Lake east, to the southern edge of the northwest Hayward Brook to its confluence with the quarter of the northwest quarter of section Connecticut River at the mouth of Hamburg 20, township 2 south, range 12 east as a sce- Cove, as a scenic river. nic river. (B) The 8.0-mile segment of the East Branch of the Eightmile River starting at Witch (B) INCLUSIONS.—Notwithstanding subsection Meadow Road to its confluence with the main (b), the lateral boundaries of both the wild stem of the Eightmile River, as a scenic river. river area and the scenic river area along (C) The 3.9-mile segment of Harris Brook Fifteenmile Creek shall include an average of starting with the confluence of an unnamed not more than 640 acres per mile measured stream lying 0.74 miles due east of the inter- from the ordinary high water mark on both section of Hartford Road (State Route 85) and sides of the river. Round Hill Road to its confluence with the (177) EAST FORK HOOD RIVER, OREGON.—The 13.5- East Branch of the Eightmile River, as a sce- mile segment of the East Fork Hood River from nic river. Oregon State Highway 35 to the Mount Hood Na- (D) The 1.9-mile segment of Beaver Brook tional Forest boundary, to be administered by starting at its confluence with Cedar Pond the Secretary of Agriculture as a recreational Brook to its confluence with the main stem of river. the Eightmile River, as a scenic river. (178) COLLAWASH RIVER, OREGON.—The 17.8-mile (E) The 0.7-mile segment of Falls Brook from segment of the Collawash River from the head- its confluence with Tisdale Brook to its con- waters of the East Fork Collawash to the con- fluence with the main stem of the Eightmile fluence of the mainstream of the Collawash River at Hamburg Cove, as a scenic river. River with the Clackamas River, to be adminis- (171) SOUTH FORK CLACKAMAS RIVER, OREGON.— tered by the Secretary of Agriculture in the fol- The 4.2-mile segment of the South Fork lowing classes: Clackamas River from its confluence with the (A) The 11.0-mile segment from the head- East Fork of the South Fork Clackamas to its waters of the East Fork Collawash River to confluence with the Clackamas River, to be ad- Buckeye Creek, as a scenic river. ministered by the Secretary of Agriculture as a (B) The 6.8-mile segment from Buckeye wild river. Creek to the Clackamas River, as a rec- (172) EAGLE CREEK, OREGON.—The 8.3-mile seg- reational river. ment of Eagle Creek from its headwaters to the Mount Hood National Forest boundary, to be ad- (179) FISH CREEK, OREGON.—The 13.5-mile seg- ministered by the Secretary of Agriculture as a ment of Fish Creek from its headwaters to the wild river. confluence with the Clackamas River, to be ad- (173) MIDDLE FORK HOOD RIVER.—The 3.7-mile ministered by the Secretary of Agriculture as a segment of the Middle Fork Hood River from the recreational river. confluence of Clear and Coe Branches to the (180) BATTLE CREEK, IDAHO.—The 23.4 miles of north section line of section 11, township 1 Battle Creek from the confluence of the Owyhee south, range 9 east, to be administered by the River to the upstream boundary of the Owyhee Secretary of Agriculture as a scenic river. River Wilderness, to be administered by the Sec- (174) SOUTH FORK ROARING RIVER, OREGON.—The retary of the Interior as a wild river. 4.6-mile segment of the South Fork Roaring (181) BIG JACKS CREEK, IDAHO.—The 35.0 miles River from its headwaters to its confluence with of Big Jacks Creek from the downstream border Roaring River, to be administered by the Sec- of the Big Jacks Creek Wilderness in sec. 8, T. 8 retary of Agriculture as a wild river. S., R. 4 E., to the point at which it enters the (175) ZIG ZAG RIVER, OREGON.—The 4.3-mile seg- NW 1⁄4 of sec. 26, T. 10 S., R. 2 E., Boise Meridian, ment of the Zig Zag River from its headwaters to be administered by the Secretary of the Inte- to the Mount Hood Wilderness boundary, to be rior as a wild river. administered by the Secretary of Agriculture as (182) BRUNEAU RIVER, IDAHO.— a wild river. (A) IN GENERAL.—Except as provided in sub- (176) FIFTEENMILE CREEK, OREGON.— paragraph (B), the 39.3-mile segment of the (A) IN GENERAL.—The 11.1-mile segment of Bruneau River from the downstream boundary Fifteenmile Creek from its source at Senecal of the Bruneau-Jarbidge Wilderness to the up- Spring to the southern edge of the northwest stream confluence with the west fork of the quarter of the northwest quarter of section 20, Bruneau River, to be administered by the Sec- township 2 south, range 12 east, to be adminis- retary of the Interior as a wild river. tered by the Secretary of Agriculture in the (B) EXCEPTION.—Notwithstanding subpara- following classes: graph (A), the 0.6-mile segment of the Bruneau (i) The 2.6-mile segment from its source at River at the Indian Hot Springs public road Senecal Spring to the Badger Creek Wilder- access shall be administered by the Secretary ness boundary, as a wild river. of the Interior as a recreational river. (ii) The 0.4-mile segment from the Badger Creek Wilderness boundary to the point 0.4 (183) WEST FORK BRUNEAU RIVER, IDAHO.—The miles downstream, as a scenic river. approximately 0.35 miles of the West Fork of the (iii) The 7.9-mile segment from the point Bruneau River from the confluence with the 0.4 miles downstream of the Badger Creek Jarbidge River to the downstream boundary of § 1274 TITLE 16—CONSERVATION Page 1618 the Bruneau Canyon Grazing Allotment in the (193) SHEEP CREEK, IDAHO.—The 25.6 miles of SE/NE of sec. 5, T. 13 S., R. 7 E., Boise Meridian, Sheep Creek from the confluence with the to be administered by the Secretary of the Inte- Bruneau River to the upstream boundary of the rior as a wild river. Bruneau-Jarbidge Rivers Wilderness, to be ad- (184) COTTONWOOD CREEK, IDAHO.—The 2.6 miles ministered by the Secretary of the Interior as a of Cottonwood Creek from the confluence with wild river. Big Jacks Creek to the upstream boundary of (194) SOUTH FORK OWYHEE RIVER, IDAHO.— the Big Jacks Creek Wilderness, to be adminis- (A) IN GENERAL.—Except as provided in sub- tered by the Secretary of the Interior as a wild paragraph (B), the 31.4-mile segment of the river. South Fork of the Owyhee River upstream (185) DEEP CREEK, IDAHO.—The 13.1-mile seg- from the confluence with the Owyhee River to ment of Deep Creek from the confluence with the upstream boundary of the Owyhee River the Owyhee River to the upstream boundary of Wilderness at the Idaho–Nevada State border, the Owyhee River Wilderness in sec. 30, T. 12 S., to be administered by the Secretary of the In- R. 2 W., Boise Meridian, to be administered by terior as a wild river. the Secretary of the Interior as a wild river. (B) EXCEPTION.—Notwithstanding subpara- (186) DICKSHOOTER CREEK, IDAHO.—The 9.25 graph (A), the 1.2-mile segment of the South miles of Dickshooter Creek from the confluence Fork of the Owyhee River from the point at with Deep Creek to a point on the stream 1⁄4 which the river enters the southernmost mile due west of the east boundary of sec. 16, T. boundary to the point at which the river exits 12 S., R. 2 W., Boise Meridian, to be adminis- the northernmost boundary of private land in tered by the Secretary of the Interior as a wild sec. 25 and 26, T. 14 S., R. 5 W., Boise Meridian, river. shall be administered by the Secretary of the (187) DUNCAN CREEK, IDAHO.—The 0.9-mile seg- Interior as a recreational river. ment of Duncan Creek from the confluence with (195) WICKAHONEY CREEK, IDAHO.—The 1.5 miles Big Jacks Creek upstream to the east boundary of Wickahoney Creek from the confluence of Big of sec. 18, T. 10 S., R. 4 E., Boise Meridian, to be Jacks Creek to the upstream boundary of the administered by the Secretary of the Interior as Big Jacks Creek Wilderness, to be administered a wild river. by the Secretary of the Interior as a wild river. (188) JARBIDGE RIVER, IDAHO.—The 28.8 miles of (196) AMARGOSA RIVER, CALIFORNIA.—The fol- the Jarbidge River from the confluence with the lowing segments of the Amargosa River in the West Fork Bruneau River to the upstream State of California, to be administered by the boundary of the Bruneau-Jarbidge Rivers Wil- Secretary of the Interior: derness, to be administered by the Secretary of (A) The approximately 4.1-mile segment of the Interior as a wild river. the Amargosa River from the northern bound- (189) LITTLE JACKS CREEK IDAHO , .—The 12.4 ary of sec. 7, T. 21 N., R. 7 E., to 100 feet up- miles of Little Jacks Creek from the down- stream of the Tecopa Hot Springs road cross- stream boundary of the Little Jacks Creek Wil- ing, as a scenic river. derness, upstream to the mouth of OX Prong (B) The approximately 8-mile segment of the Creek, to be administered by the Secretary of Amargosa River from 100 feet downstream of the Interior as a wild river. the Tecopa Hot Springs Road crossing to 100 (190) NORTH FORK OWYHEE RIVER, IDAHO.—The feet upstream of the Old Spanish Trail High- following segments of the North Fork of the way crossing near Tecopa, as a scenic river. Owyhee River, to be administered by the Sec- (C) The approximately 7.9-mile segment of retary of the Interior: the Amargosa River from the northern bound- (A) The 5.7-mile segment from the Idaho-Or- ary of sec. 16, T. 20 N., R. 7 E., to .25 miles up- egon State border to the upstream boundary of stream of the confluence with Sperry Wash in the private land at the Juniper Mt. Road sec. 10, T. 19 N., R. 7 E., as a wild river. crossing, as a recreational river. (D) The approximately 4.9-mile segment of (B) The 15.1-mile segment from the upstream the Amargosa River from .25 miles upstream boundary of the North Fork Owyhee River rec- of the confluence with Sperry Wash in sec. 10, reational segment designated in paragraph (A) T. 19 N., R. 7 E. to 100 feet upstream of the Du- to the upstream boundary of the North Fork mont Dunes access road crossing in sec. 32, T. Owyhee River Wilderness, as a wild river. 19 N., R. 7 E., as a recreational river. (191) OWYHEE RIVER, IDAHO.— (E) The approximately 1.4-mile segment of (A) IN GENERAL.—Subject to subparagraph the Amargosa River from 100 feet downstream (B), the 67.3 miles of the Owyhee River from of the Dumont Dunes access road crossing in the Idaho-Oregon State border to the up- sec. 32, T. 19 N., R. 7 E., as a recreational river. stream boundary of the Owyhee River Wilder- (197) OWENS RIVER HEADWATERS, CALIFORNIA.— ness, to be administered by the Secretary of The following segments of the Owens River in the Interior as a wild river. the State of California, to be administered by (B) ACCESS.—The Secretary of the Interior the Secretary of Agriculture: shall allow for continued access across the (A) The 2.3-mile segment of Deadman Creek Owyhee River at Crutchers Crossing, subject from the 2-forked source east of San Joaquin to such terms and conditions as the Secretary Peak to the confluence with the unnamed trib- of the Interior determines to be necessary. utary flowing north into Deadman Creek from (192) RED CANYON, IDAHO.—The 4.6 miles of Red sec. 12, T. 3 S., R. 26 E., as a wild river. Canyon from the confluence of the Owyhee (B) The 2.3-mile segment of Deadman Creek River to the upstream boundary of the Owyhee from the unnamed tributary confluence in sec. River Wilderness, to be administered by the Sec- 12, T. 3 S., R. 26 E., to the Road 3S22 crossing, retary of the Interior as a wild river. as a scenic river. Page 1619 TITLE 16—CONSERVATION § 1274

(C) The 4.1-mile segment of Deadman Creek (E) The 0.6-mile segment from .25 miles up- from the Road 3S22 crossing to .25 miles down- stream of the 5S09 road crossing to its con- stream of the Highway 395 crossing, as a rec- fluence with Stone Creek, as a scenic river. reational river. (F) The 2.91-mile segment from the Stone (D) The 3-mile segment of Deadman Creek Creek confluence to the northern boundary of from .25 miles downstream of the Highway 395 section 17, township 5 south, range 2 east, San crossing to 100 feet upstream of Big Springs, as Bernardino meridian, as a wild river. a scenic river. (E) The 1-mile segment of the Upper Owens (201) FULLER MILL CREEK, CALIFORNIA.—The River from 100 feet upstream of Big Springs to following segments of Fuller Mill Creek in the the private property boundary in sec. 19, T. 2 State of California, to be administered by the S., R. 28 E., as a recreational river. Secretary of Agriculture: (F) The 4-mile segment of Glass Creek from (A) The 1.2-mile segment from the source of its 2-forked source to 100 feet upstream of the Fuller Mill Creek in the San Jacinto Wilder- Glass Creek Meadow Trailhead parking area in ness to the Pinewood property boundary in sec. 29, T. 2 S., R. 27 E., as a wild river. section 13, township 4 south, range 2 east, San (G) The 1.3-mile segment of Glass Creek Bernardino meridian, as a scenic river. from 100 feet upstream of the trailhead park- (B) The 0.9-mile segment in the Pine Wood ing area in sec. 29 to the end of Glass Creek property, as a recreational river. Road in sec. 21, T. 2 S., R. 27 E., as a scenic (C) The 1.4-mile segment from the Pinewood river. property boundary in section 23, township 4 (H) The 1.1-mile segment of Glass Creek south, range 2 east, San Bernardino meridian, from the end of Glass Creek Road in sec. 21, T. to its confluence with the North Fork San 2 S., R. 27 E., to the confluence with Deadman Jacinto River, as a scenic river. Creek, as a recreational river. (202) PALM CANYON CREEK, CALIFORNIA.—The (198) COTTONWOOD CREEK, CALIFORNIA.—The fol- 8.1-mile segment of Palm Canyon Creek in the lowing segments of Cottonwood Creek in the State of California from the southern boundary State of California: of section 6, township 7 south, range 5 east, San (A) The 17.4-mile segment from its head- Bernardino meridian, to the San Bernardino Na- waters at the spring in sec. 27, T 4 S., R. 34 E., tional Forest boundary in section 1, township 6 to the Inyo National Forest boundary at the south, range 4 east, San Bernardino meridian, to east section line of sec 3, T. 6 S., R. 36 E., as be administered by the Secretary of Agriculture a wild river to be administered by the Sec- as a wild river, and the Secretary shall enter retary of Agriculture. into a cooperative management agreement with (B) The 4.1-mile segment from the Inyo Na- the Agua Caliente Band of Cahuilla Indians to tional Forest boundary to the northern bound- protect and enhance river values. ary of sec. 5, T. 4 S., R. 34 E., as a recreational (203) BAUTISTA CREEK, CALIFORNIA.—The 9.8- river, to be administered by the Secretary of mile segment of Bautista Creek in the State of the Interior. California from the San Bernardino National (199) PIRU CREEK, CALIFORNIA.—The following Forest boundary in section 36, township 6 south, segments of Piru Creek in the State of Califor- range 2 east, San Bernardino meridian, to the nia, to be administered by the Secretary of Agri- San Bernardino National Forest boundary in culture: section 2, township 6 south, range 1 east, San (A) The 3-mile segment of Piru Creek from Bernardino meridian, to be administered by the 0.5 miles downstream of Pyramid Dam at the Secretary of Agriculture as a recreational river. first bridge crossing to the boundary of the (204) ZION NATIONAL PARK, UTAH.—The approxi- Sespe Wilderness, as a recreational river. mately 165.5 miles of segments of the Virgin (B) The 4.25-mile segment from the boundary River and tributaries of the Virgin River across of the Sespe Wilderness to the boundary be- Federal land within and adjacent to Zion Na- tween Los Angeles and Ventura Counties, as a tional Park, as generally depicted on the map wild river. entitled ‘‘Wild and Scenic River Segments Zion (200) NORTH FORK SAN JACINTO RIVER, CALIFOR- National Park and Bureau of Land Manage- NIA.—The following segments of the North Fork ment’’ and dated April 2008, to be administered San Jacinto River in the State of California, to by the Secretary of the Interior in the following be administered by the Secretary of Agriculture: classifications: (A) The 2.12-mile segment from the source of (A) TAYLOR CREEK.—The 4.5-mile segment the North Fork San Jacinto River at Deer from the junction of the north, middle, and Springs in Mt. San Jacinto State Park to the south forks of Taylor Creek, west to the park State Park boundary, as a wild river. boundary and adjacent land rim-to-rim, as a (B) The 1.66-mile segment from the Mt. San scenic river. Jacinto State Park boundary to the Lawler (B) NORTH FORK OF TAYLOR CREEK.—The seg- Park boundary in section 26, township 4 south, ment from the head of North Fork to the junc- range 2 east, San Bernardino meridian, as a tion with Taylor Creek and adjacent land rim- scenic river. to-rim, as a wild river. (C) The 0.68-mile segment from the Lawler (C) MIDDLE FORK OF TAYLOR CREEK.—The seg- Park boundary to its confluence with Fuller ment from the head of Middle Fork on Bureau Mill Creek, as a recreational river. of Land Management land to the junction with (D) The 2.15-mile segment from its con- Taylor Creek and adjacent land rim-to-rim, as fluence with Fuller Mill Creek to .25 miles up- a wild river. stream of the 5S09 road crossing, as a wild (D) SOUTH FORK OF TAYLOR CREEK.—The seg- river. ment from the head of South Fork to the junc- § 1274 TITLE 16—CONSERVATION Page 1620

tion with Taylor Creek and adjacent land rim- (S) WOLF SPRINGS WASH.—The 1.4-mile seg- to-rim, as a wild river. ment from the head of Wolf Springs Wash to (E) TIMBER CREEK AND TRIBUTARIES.—The 3.1- the junction with Pine Spring Wash and adja- mile segment from the head of Timber Creek cent land 1⁄2-mile wide, as a scenic river. and tributaries of Timber Creek to the junc- (T) KOLOB CREEK.—The 5.9-mile segment of tion with LaVerkin Creek and adjacent land Kolob Creek beginning in T. 39 S., R. 10 W., rim-to-rim, as a wild river. sec. 30, through Bureau of Land Management (F) LAVERKIN CREEK.—The 16.1-mile segment land and Zion National Park land to the junc- beginning in T. 38 S., R. 11 W., sec. 21, on Bu- tion with the North Fork of the Virgin River reau of Land Management land, southwest and adjacent land rim-to-rim, as a wild river. through Zion National Park, and ending at the (U) OAK CREEK.—The 1-mile stretch of Oak south end of T. 40 S., R. 12 W., sec. 7, and adja- Creek beginning in T. 39 S., R. 10 W., sec. 19, cent land 1⁄2-mile wide, as a wild river. to the junction with Kolob Creek and adjacent (G) WILLIS CREEK.—The 1.9-mile segment be- land rim-to-rim, as a wild river. ginning on Bureau of Land Management land (V) GOOSE CREEK.—The 4.6-mile segment of in the SWSW sec. 27, T. 38 S., R. 11 W., to the Goose Creek from the head of Goose Creek to junction with LaVerkin Creek in Zion Na- the junction with the North Fork of the Virgin tional Park and adjacent land rim-to-rim, as a River and adjacent land rim-to-rim, as a wild wild river. river. (H) BEARTRAP CANYON.—The 2.3-mile seg- (W) DEEP CREEK.—The 5.3-mile segment of ment beginning on Bureau of Management Deep Creek beginning on Bureau of Land Man- land in the SWNW sec. 3, T. 39 S., R. 11 W., to agement land at the northern boundary of T. the junction with LaVerkin Creek and the seg- 39 S., R. 10 W., sec. 23, south to the junction of ment from the headwaters north of Long Point the North Fork of the Virgin River and adja- to the junction with LaVerkin Creek and adja- cent land rim-to-rim, as a wild river. cent land rim-to-rim, as a wild river. (X) NORTH FORK OF THE VIRGIN RIVER.—The (I) HOP VALLEY CREEK.—The 3.3-mile segment 10.8-mile segment of the North Fork of the beginning at the southern boundary of T. 39 S., Virgin River beginning on Bureau of Land R. 11 W., sec. 20, to the junction with Management land at the eastern border of T. LaVerkin Creek and adjacent land 1⁄2-mile 39 S., R. 10 W., sec. 35, to Temple of Sinawava wide, as a wild river. and adjacent land rim-to-rim, as a wild river. (J) CURRENT CREEK.—The 1.4-mile segment (Y) NORTH FORK OF THE VIRGIN RIVER.—The 8- from the head of Current Creek to the junc- mile segment of the North Fork of the Virgin tion with LaVerkin Creek and adjacent land River from Temple of Sinawava south to the rim-to-rim, as a wild river. Zion National Park boundary and adjacent (K) CANE CREEK.—The 0.6-mile segment from land 1⁄2-mile wide, as a recreational river. the head of Smith Creek to the junction with (Z) IMLAY CANYON.—The segment from the LaVerkin Creek and adjacent land 1⁄2-mile head of Imlay Creek to the junction with the wide, as a wild river. North Fork of the Virgin River and adjacent (L) SMITH CREEK.—The 1.3-mile segment land rim-to-rim, as a wild river. from the head of Smith Creek to the junction (AA) ORDERVILLE CANYON.—The segment with LaVerkin Creek and adjacent land 1⁄2- from the eastern boundary of Zion National mile wide, as a wild river. Park to the junction with the North Fork of (M) NORTH CREEK LEFT AND RIGHT FORKS.— the Virgin River and adjacent land rim-to-rim, The segment of the Left Fork from the junc- as a wild river. tion with Wildcat Canyon to the junction with (BB) MYSTERY CANYON.—The segment from Right Fork, from the head of Right Fork to the head of Mystery Canyon to the junction the junction with Left Fork, and from the with the North Fork of the Virgin River and junction of the Left and Right Forks south- adjacent land rim-to-rim, as a wild river. west to Zion National Park boundary and ad- (CC) ECHO CANYON.—The segment from the jacent land rim-to-rim, as a wild river. eastern boundary of Zion National Park to the (N) WILDCAT CANYON (BLUE CREEK).—The seg- junction with the North Fork of the Virgin ment of Blue Creek from the Zion National River and adjacent land rim-to-rim, as a wild Park boundary to the junction with the Right river. Fork of North Creek and adjacent land rim-to- (DD) BEHUNIN CANYON.—The segment from rim, as a wild river. the head of Behunin Canyon to the junction (O) LITTLE CREEK.—The segment beginning with the North Fork of the Virgin River and at the head of Little Creek to the junction adjacent land rim-to-rim, as a wild river. with the Left Fork of North Creek and adja- (EE) HEAPS CANYON.—The segment from the cent land 1⁄2-mile wide, as a wild river. head of Heaps Canyon to the junction with the (P) RUSSELL GULCH.—The segment from the North Fork of the Virgin River and adjacent head of Russell Gulch to the junction with the land rim-to-rim, as a wild river. Left Fork of North Creek and adjacent land (FF) BIRCH CREEK.—The segment from the rim-to-rim, as a wild river. head of Birch Creek to the junction with the (Q) GRAPEVINE WASH.—The 2.6-mile segment North Fork of the Virgin River and adjacent from the Lower Kolob Plateau to the junction land 1⁄2-mile wide, as a wild river. with the Left Fork of North Creek and adja- (GG) OAK CREEK.—The segment of Oak Creek cent land rim-to-rim, as a scenic river. from the head of Oak Creek to where the forks (R) PINE SPRING WASH.—The 4.6-mile segment join and adjacent land 1⁄2-mile wide, as a wild to the junction with the left fork of North river. Creek and adjacent land 1⁄2-mile, as a scenic (HH) OAK CREEK.—The 1-mile segment of Oak river. Creek from the point at which the 2 forks of Page 1621 TITLE 16—CONSERVATION § 1274

Oak Creek join to the junction with the North Park to its confluence with the Snake River, Fork of the Virgin River and adjacent land 1⁄2- as a scenic river. mile wide, as a recreational river. (D) CRYSTAL CREEK.—The portions of Crystal (II) CLEAR CREEK.—The 6.4-mile segment of Creek, consisting of— Clear Creek from the eastern boundary of Zion (i) the 14-mile segment from its source to National Park to the junction with Pine Creek the Gros Ventre Wilderness boundary, as a and adjacent land rim-to-rim, as a rec- wild river; and reational river. (ii) the 5-mile segment from the Gros (JJ) PINE CREEK.—The 2-mile segment of Ventre Wilderness boundary to its con- Pine Creek from the head of Pine Creek to the fluence with the Gros Ventre River, as a sce- junction with Clear Creek and adjacent land nic river. rim-to-rim, as a wild river. (KK) PINE CREEK.—The 3-mile segment of (E) GRANITE CREEK.—The portions of Granite Pine Creek from the junction with Clear Creek Creek, consisting of— to the junction with the North Fork of the (i) the 12-mile segment from its source to Virgin River and adjacent land rim-to-rim, as the end of Granite Creek Road, as a wild a recreational river. river; and (LL) EAST FORK OF THE VIRGIN RIVER.—The 8- (ii) the 9.5-mile segment from Granite Hot mile segment of the East Fork of the Virgin Springs to the point 1 mile upstream from River from the eastern boundary of Zion Na- its confluence with the Hoback River, as a tional Park through Parunuweap Canyon to scenic river. the western boundary of Zion National Park (F) GROS VENTRE RIVER.—The portions of the 1 and adjacent land ⁄2-mile wide, as a wild river. Gros Ventre River, consisting of— (MM) SHUNES CREEK.—The 3-mile segment of (i) the 16.5-mile segment from its source to Shunes Creek from the dry waterfall on land Darwin Ranch, as a wild river; administered by the Bureau of Land Manage- (ii) the 39-mile segment from Darwin ment through Zion National Park to the west- Ranch to the upstream boundary of Grand ern boundary of Zion National Park and adja- Teton National Park, excluding the section 1 cent land ⁄2-mile wide as a wild river. along Lower Slide Lake, as a scenic river; (205) FOSSIL CREEK, ARIZONA.—Approximately and 16.8 miles of Fossil Creek from the confluence of (iii) the 3.3-mile segment flowing across Sand Rock and Calf Pen Canyons to the con- the southern boundary of Grand Teton Na- fluence with the Verde River, to be administered tional Park to the Highlands Drive Loop by the Secretary of Agriculture in the following Bridge, as a scenic river. classes: (G) HOBACK RIVER.—The 10-mile segment (A) The approximately 2.7-mile segment from the point 10 miles upstream from its con- from the confluence of Sand Rock and Calf fluence with the Snake River to its confluence Pen Canyons to the point where the segment with the Snake River, as a recreational river. exits the Fossil Spring Wilderness, as a wild (H) LEWIS RIVER.—The portions of the Lewis river. River, consisting of— (B) The approximately 7.5-mile segment (i) the 5-mile segment from Shoshone Lake from where the segment exits the Fossil Creek to Lewis Lake, as a wild river; and Wilderness to the boundary of the Mazatzal (ii) the 12-mile segment from the outlet of Wilderness, as a recreational river. Lewis Lake to its confluence with the Snake (C) The 6.6-mile segment from the boundary River, as a scenic river. of the Mazatzal Wilderness downstream to the confluence with the Verde River, as a wild (I) PACIFIC CREEK.—The portions of Pacific river. Creek, consisting of— (i) the 22.5-mile segment from its source to (206) SNAKE RIVER HEADWATERS, WYOMING.—The the Teton Wilderness boundary, as a wild following segments of the Snake River System, river; and in the State of Wyoming: (ii) the 11-mile segment from the Wilder- (A) BAILEY CREEK.—The 7-mile segment of ness boundary to its confluence with the Bailey Creek, from the divide with the Little Snake River, as a scenic river. Greys River north to its confluence with the Snake River, as a wild river. (J) SHOAL CREEK.—The 8-mile segment from (B) BLACKROCK CREEK.—The 22-mile segment its source to the point 8 miles downstream from its source to the Bridger-Teton National from its source, as a wild river. Forest boundary, as a scenic river. (K) SNAKE RIVER.—The portions of the Snake (C) BUFFALO FORK OF THE SNAKE RIVER.—The River, consisting of— portions of the Buffalo Fork of the Snake (i) the 47-mile segment from its source to River, consisting of— Jackson Lake, as a wild river; (i) the 55-mile segment consisting of the (ii) the 24.8-mile segment from 1 mile North Fork, the Soda Fork, and the South downstream of Jackson Lake Dam to 1 mile Fork, upstream from Turpin Meadows, as a downstream of the Teton Park Road bridge wild river; at Moose, Wyoming, as a scenic river; and (ii) the 14-mile segment from Turpin Mead- (iii) the 19-mile segment from the mouth ows to the upstream boundary of Grand of the Hoback River to the point 1 mile up- Teton National Park, as a scenic river; and stream from the Highway 89 bridge at Alpine (iii) the 7.7-mile segment from the up- Junction, as a recreational river, the bound- stream boundary of Grand Teton National ary of the western edge of the corridor for § 1274 TITLE 16—CONSERVATION Page 1622

the portion of the segment extending from (d) Comprehensive management plan for protec- the point 3.3 miles downstream of the mouth tion of river values; review of boundaries, of the Hoback River to the point 4 miles classifications, and plans downstream of the mouth of the Hoback (1) For rivers designated on or after January 1, River being the ordinary high water mark. 1986, the Federal agency charged with the ad- (L) WILLOW CREEK.—The 16.2-mile segment ministration of each component of the National from the point 16.2 miles upstream from its Wild and Scenic Rivers System shall prepare a confluence with the Hoback River to its con- comprehensive management plan for such river fluence with the Hoback River, as a wild river. segment to provide for the protection of the (M) WOLF CREEK.—The 7-mile segment from river values. The plan shall address resource its source to its confluence with the Snake protection, development of lands and facilities, River, as a wild river. user capacities, and other management prac- tices necessary or desirable to achieve the pur- (207) TAUNTON RIVER, MASSACHUSETTS.—The poses of this chapter. The plan shall be coordi- main stem of the Taunton River from its head- nated with and may be incorporated into re- waters at the confluence of the Town and source management planning for affected adja- Matfield Rivers in the Town of Bridgewater cent Federal lands. The plan shall be prepared, downstream 40 miles to the confluence with the after consultation with State and local govern- Quequechan River at the Route 195 Bridge in the ments and the interested public within 3 full fis- City of Fall River, to be administered by the cal years after the date of designation. Notice of Secretary of the Interior in cooperation with the completion and availability of such plans the Taunton River Stewardship Council as fol- shall be published in the Federal Register. lows: (2) For rivers designated before January 1, (A) The 18-mile segment from the confluence 1986, all boundaries, classifications, and plans of the Town and Matfield Rivers to Route 24 in shall be reviewed for conformity within the re- the Town of Raynham, as a scenic river. quirements of this subsection within 10 years (B) The 5-mile segment from Route 24 to 0.5 through regular agency planning processes. miles below Weir Bridge in the City of Taun- ton, as a recreational river. (Pub. L. 90–542, § 3, Oct. 2, 1968, 82 Stat. 907; Pub. (C) The 8-mile segment from 0.5 miles below L. 92–560, § 2, Oct. 25, 1972, 86 Stat. 1174; Pub. L. Weir Bridge to Muddy Cove in the Town of 93–279, § 1(a), May 10, 1974, 88 Stat. 122; Pub. L. Dighton, as a scenic river. 94–199, § 3(a), Dec. 31, 1975, 89 Stat. 1117; Pub. L. (D) The 9-mile segment from Muddy Cove to 94–486, title I, § 101, title II, § 201, title III, § 301, the confluence with the Quequechan River at title VI, § 601, Oct. 12, 1976, 90 Stat. 2327, 2329, the Route 195 Bridge in the City of Fall River, 2330; Pub. L. 95–625, title VII, §§ 701–704(a), as a recreational river. 705–708, 755, 763(a), Nov. 10, 1978, 92 Stat. 3521–3523, 3527–3529, 3533; Pub. L. 96–87, title IV, (b) Establishment of boundaries; classification § 401(p)(1), Oct. 12, 1979, 93 Stat. 666; Pub. L. 96–312, § 9(a), July 23, 1980, 94 Stat. 952; Pub. L. The agency charged with the administration 96–344, § 16, Sept. 8, 1980, 94 Stat. 1137; Pub. L. of each component of the national wild and sce- 96–487, title VI, §§ 601–603, Dec. 2, 1980, 94 Stat. nic rivers system designated by subsection (a) of 2412–2414; Pub. L. 96–580, Dec. 23, 1980, 94 Stat. this section shall, within one year from the date 3370; Pub. L. 98–231, § 1, Mar. 14, 1984, 98 Stat. 60; of designation of such component under sub- Pub. L. 98–406, title I, § 104, Aug. 28, 1984, 98 Stat. section (a) of this section (except where a dif- 1491; Pub. L. 98–425, title II, § 201, Sept. 28, 1984, ferent date if 14 provided in subsection (a) of this 98 Stat. 1632; Pub. L. 98–444, Oct. 4, 1984, 98 Stat. section), establish detailed boundaries therefor 1714; Pub. L. 98–494, § 1, Oct. 19, 1984, 98 Stat. 2274; (which boundaries shall include an average of Pub. L. 99–530, § 1, Oct. 27, 1986, 100 Stat. 3021; not more than 320 acres of land per mile meas- Pub. L. 99–590, title I, § 101, title IV, § 401, title V, ured from the ordinary high water mark on both § 501, title VI, § 601, Oct. 30, 1986, 100 Stat. 3330, sides of the river); and determine which of the 3334, 3337; Pub. L. 99–663, § 13(c), Nov. 17, 1986, 100 classes outlined in section 1273(b) of this title Stat. 4294; Pub. L. 100–149, § 1, Nov. 2, 1987, 101 best fit the river or its various segments. Stat. 879; Pub. L. 100–150, § 1, Nov. 3, 1987, 101 Notice of the availability of the boundaries Stat. 881; Pub. L. 100–174, Nov. 24, 1987, 101 Stat. and classification, and of subsequent boundary 924; Pub. L. 100–534, title III, § 301, title V, § 501, amendments shall be published in the Federal Oct. 26, 1988, 102 Stat. 2706, 2708; Pub. L. 100–547, Register and shall not become effective until title I, § 101, Oct. 28, 1988, 102 Stat. 2736; Pub. L. ninety days after they have been forwarded to 100–554, § 1, Oct. 28, 1988, 102 Stat. 2776; Pub. L. the President of the Senate and the Speaker of 100–557, title I, § 102, Oct. 28, 1988, 102 Stat. 2782; the House of Representatives. Pub. L. 100–633, § 1, Nov. 7, 1988, 102 Stat. 3320; (c) Public inspection of maps and descriptions Pub. L. 100–668, title V, § 501, Nov. 16, 1988, 102 Stat. 3967; Pub. L. 101–40, § 2(a), June 20, 1989, 103 Maps of all boundaries and descriptions of the Stat. 81; Pub. L. 101–306, § 2, June 6, 1990, 104 classifications of designated river segments, and Stat. 260; Pub. L. 101–612, § 10(b), Nov. 16, 1990, 104 subsequent amendments to such boundaries, Stat. 3215; Pub. L. 101–628, title XIII, § 1302, Nov. shall be available for public inspection in the of- 28, 1990, 104 Stat. 4509; Pub. L. 102–50, § 2, May 24, fices of the administering agency in the District 1991, 105 Stat. 254; Pub. L. 102–249, § 3, Mar. 3, of Columbia and in locations convenient to the 1992, 106 Stat. 45; Pub. L. 102–271, § 1, Apr. 20, 1992, designated river. 106 Stat. 108; Pub. L. 102–275, § 2, Apr. 22, 1992, 106 Stat. 123; Pub. L. 102–301, § 6, June 19, 1992, 106 14 So in original. Probably should be ‘‘is’’. Stat. 245; Pub. L. 102–432, § 1, Oct. 23, 1992, 106 Page 1623 TITLE 16—CONSERVATION § 1274

Stat. 2212; Pub. L. 102–536, § 1, Oct. 27, 1992, 106 Subsec. (a)(204). Pub. L. 111–11, § 1976(a), added par. Stat. 3528; Pub. L. 103–162, § 2, Dec. 1, 1993, 107 (204). Stat. 1969; Pub. L. 103–170, § 3, Dec. 2, 1993, 107 Subsec. (a)(205). Pub. L. 111–11, § 5001, added par. (205). Subsec. (a)(206). Pub. L. 111–11, § 5002(d), added par. Stat. 1986; Pub. L. 103–242, § 2, May 4, 1994, 108 (206). Stat. 611; Pub. L. 103–313, § 3, Aug. 26, 1994, 108 Subsec. (a)(207). Pub. L. 111–11, § 5003(a), added par. Stat. 1700; Pub. L. 103–437, § 6(d)(40), Nov. 2, 1994, (207). 108 Stat. 4585; Pub. L. 104–208, div. B, title I, § 109, 2008—Subsec. (a). Pub. L. 110–229 redesignated par. Sept. 30, 1996, 110 Stat. 3009–531; Pub. L. 104–314, (167) relating to the Musconetcong River, New Jersey, Oct. 19, 1996, 110 Stat. 3823; Pub. L. 104–333, div. as par. (169), designated the unnumbered par. relating I, title IV, §§ 405(a), 406(d), 407(a), title X, to the White Salmon River, Washington, as par. (167) § 1023(h), Nov. 12, 1996, 110 Stat. 4149, 4151, 4223; and the unnumbered par. relating to the Black Butte River, California, as par. (168), and added par. (170). Pub. L. 106–20, § 2(b), (g), Apr. 9, 1999, 113 Stat. 31, 2006—Subsec. (a). Pub. L. 109–362 added unnumbered 33; Pub. L. 106–176, title I, § 106(a), Mar. 10, 2000, par. relating to Black Butte River, California. 114 Stat. 25; Pub. L. 106–192, § 2(a), May 2, 2000, Subsec. (a)(167). Pub. L. 109–452 added par. (167). 114 Stat. 233; Pub. L. 106–261, Aug. 18, 2000, 114 2005—Subsec. (a). Pub. L. 109–44 added unnumbered Stat. 735; Pub. L. 106–299, § 3, Oct. 13, 2000, 114 par. relating to White Salmon River, Washington. Stat. 1051; Pub. L. 106–357, § 3, Oct. 24, 2000, 114 2004—Subsec. (a)(24)(D) to (G). Pub. L. 108–447 added Stat. 1393; Pub. L. 106–399, title III, § 301(a), (b), subpar. (D) and redesignated former subpars. (D) to (F) as (E) to (G), respectively. Oct. 30, 2000, 114 Stat. 1667, 1668; Pub. L. 106–418, Subsec. (a)(161). Pub. L. 108–352, § 5(4), redesignated § 3, Nov. 1, 2000, 114 Stat. 1817; Pub. L. 107–365, par. (161) relating to the Lower Delaware River and as- § 2(b), Dec. 19, 2002, 116 Stat. 3027; Pub. L. 108–352, sociated tributaries as par. (165). § 5, Oct. 21, 2004, 118 Stat. 1395; Pub. L. 108–447, Pub. L. 108–352, § 5(2), redesignated par. (161) relating div. E, title III, § 340, Dec. 8, 2004, 118 Stat. 3103; to Wekiva River as par. (162). Pub. L. 109–44, § 2, Aug. 2, 2005, 119 Stat. 443; Pub. Subsec. (a)(162). Pub. L. 108–352, § 5(2), redesignated L. 109–362, § 7(a), Oct. 17, 2006, 120 Stat. 2070; Pub. par. (161) relating to Wekiva River as par. (162). Former par. (162) redesignated par. (163). L. 109–452, § 4, Dec. 22, 2006, 120 Stat. 3364; Pub. L. Subsec. (a)(163). Pub. L. 108–352, § 5(1), redesignated 110–229, title III, § 344(b), May 8, 2008, 122 Stat. par. (162) as par. (163). 798; Pub. L. 111–11, title I, §§ 1203(a)(1), 1302, Subsec. (a)(164). Pub. L. 108–352, § 5(3), designated un- 1504(a), 1805(a), 1852, 1976(a), title V, §§ 5001, numbered par. relating to Wildhorse and Kiger Creeks, 5002(d), 5003(a), Mar. 30, 2009, 123 Stat. 1011, 1026, Oregon, as par. (164). 1037, 1057, 1067, 1085, 1147, 1149, 1152.) Subsec. (a)(165). Pub. L. 108–352, § 5(4), redesignated par. (161) relating to the Lower Delaware River and as- REFERENCES IN TEXT sociated tributaries as par. (165). Section 704(c) of the National Parks and Recreation Subsec. (a)(166). Pub. L. 108–352, § 5(5), designated un- Act of 1978, referred to in subsec. (a)(19), is section numbered par. relating to Rivers of Caribbean National 704(c), Pub. L. 95–625, Nov. 10, 1978, 92 Stat. 3524, which Forest, Puerto Rico, as par. (166). is set out under this section in a note captioned ‘‘Upper 2002—Subsec. (a). Pub. L. 107–365 added unnumbered Delaware Segment Special Provisions’’. par. relating to Rivers of Caribbean National Forest, The Act establishing the Delaware Water Gap Na- Puerto Rico. tional Recreation Area, referred to in subsec. (a)(20), is 2000—Subsec. (a). Pub. L. 106–418, § 3(4), which directed Pub. L. 89–158, Sept. 1, 1965, 79 Stat. 612, which is classi- repeal of the fourth undesignated par. following par. fied generally to subchapter LXXIII (§ 460o et seq.) of 156, pertaining to Elkhorn Creek and enacted by Pub. chapter 1 of this title. For complete classification of L. 104–333, could not be executed because the undesig- this Act to the Code, see Tables. nated par. referred to was designated par. (159) by Pub. The Raker Act, referred to in subsec. (a)(53), is act L. 106–20. See 1999 Amendment note below. Dec. 19, 1913, ch. 4, 38 Stat. 242, which is not classified Pub. L. 106–418, § 3(3), which directed designation of to the Code. the third undesignated par. following par. 156, pertain- Section 14(b) of the Federal Advisory Committee Act, ing to the Lamprey River, New Hampshire, and enacted referred to in subsec. (a)(67)(B)(vii), is section 14(b) of by Pub. L. 104–333, as par. 159, could not be executed be- Pub. L. 92–463, which is set out in the Appendix to Title cause the undesignated par. referred to was redesig- 5, Government Organization and Employees. nated as par. (158) by Pub. L. 106–20. See 1999 Amend- Section 105 of the Omnibus Oregon Wild and Scenic ment note below. Rivers Act of 1988, referred to in subsec. (a)(73)(E) and Pub. L. 106–418, § 3(2), which directed designation of (85)(B), is section 105 of Pub. L. 100–557, which is set out the second undesignated par. following par. 156, per- as a note below. taining to the Clarion River, Pennsylvania, and en- Section 203 of the Flood Control Act of 1958, referred acted by Pub. L. 104–314, as par. 158, could not be exe- to in subsec. (a)(136)(D), is section 203 of Pub. L. 85–500, cuted because the undesignated par. referred to was re- title II, July 3, 1958, 72 Stat. 305, which is not classified designated as par. (157) by Pub. L. 106–20. See 1999 to the Code. Amendment note below. Pub. L. 106–418, § 3(1), which directed designation of AMENDMENTS the first undesignated par. following par. 156, pertain- 2009—Subsec. (a)(76). Pub. L. 111–11, § 1302, substituted ing to Elkhorn Creek and enacted by Pub. L. 104–208, as ‘‘29-mile segment’’ for ‘‘19-mile segment’’ in introduc- par. 157, could not be executed because the undesig- tory provisions, substituted period for ‘‘; and’’ in sub- nated par. referred to was repealed by Pub. L. 106–20. par. (A), added subpars. (B) and (C), and struck out See 1999 Amendment note below. former subpar. (B) which read as follows: ‘‘the 2-mile Pub. L. 106–399, § 301(b), added unnumbered par. relat- segment of the North Fork Elk from the falls to its ing to Wildhorse and Kiger Creeks, Oregon. confluence with the South Fork as a wild river.’’ Subsec. (a)(74)(A). Pub. L. 106–399, § 301(a)(2), sub- Subsec. (a)(171) to (179). Pub. L. 111–11, § 1203(a)(1), stituted period for semicolon at end. added pars. (171) to (179). Pub. L. 106–399, § 301(a)(1), which directed the substi- Subsec. (a)(180) to (195). Pub. L. 111–11, § 1504(a), added tution of ‘‘The’’ for ‘‘the’’ at the beginning of each sub- pars. (180) to (195). par. in par. (74), could not be executed to subpar. (A) be- Subsec. (a)(196) to (199). Pub. L. 111–11, § 1805(a), added cause subpar. (A) does not begin with ‘‘the’’. pars. (196) to (199). Subsec. (a)(74)(B) to (D). Pub. L. 106–399, § 301(a)(1), (2), Subsec. (a)(200) to (203). Pub. L. 111–11, § 1852, added substituted ‘‘The’’ for ‘‘the’’ at beginning and period pars. (200) to (203). for semicolon at end. § 1274 TITLE 16—CONSERVATION Page 1624

Subsec. (a)(74)(E). Pub. L. 106–399, § 301(a)(1), (3), sub- Pub. L. 102–271 added unnumbered par. relating to Al- stituted ‘‘The’’ for ‘‘the’’ at beginning and period for legheny River, Pennsylvania. ‘‘; and’’ at end. Pub. L. 102–249 added unnumbered pars. relating to Subsec. (a)(74)(F). Pub. L. 106–399, § 301(a)(1), sub- the following rivers in Michigan: Bear Creek, Black, stituted ‘‘The’’ for ‘‘the’’ at beginning. Carp, Indian, Manistee, Ontonagon, Paint, Pine, Subsec. (a)(74)(G) to (I). Pub. L. 106–399, § 301(a)(4), Presque Isle, Sturgeon (Hiawatha National Forest), added subpars. (G) to (I). Sturgeon (Ottawa National Forest), East Branch of the Subsec. (a)(158). Pub. L. 106–192 substituted ‘‘23.5-mile Tahquamenon, Whitefish, and Yellow Dog. segment extending from the Bunker Pond Dam in Ep- Subsec. (a)(62). Pub. L. 102–432 designated existing ping’’ for ‘‘11.5-mile segment extending from the south- provisions as subpar. (A), substituted ‘‘subparagraph’’ ern Lee town line’’ in first sentence and ‘‘towns of Ep- for ‘‘paragraph’’ in two places, and added subpars. (B) ping,’’ for ‘‘towns of’’ in second sentence. and (C). Pub. L. 106–176 substituted ‘‘through cooperative 1991—Subsec. (a). Pub. L. 102–50 added unnumbered agreements’’ for ‘‘through cooperation agreements’’ in pars. relating to Niobrara River, Nebraska, and Mis- second sentence. souri River, Nebraska and South Dakota. Subsec. (a)(161). Pub. L. 106–418, § 3(5), added par. (161) 1990—Subsec. (a). Pub. L. 101–628 added unnumbered relating to Lower Delaware River and associated tribu- par. relating to Clarks Fork, Wyoming. taries. Pub. L. 101–612 added unnumbered pars. relating to Pub. L. 106–299 added par. (161) relating to Wekiva the following California rivers: Smith River, Middle River. Fork Smith River, North Fork Smith River, Siskiyou Pub. L. 106–261 added par. (161) relating to Wilson Fork Smith River, and South Fork Smith River. Creek. Pub. L. 101–306 added unnumbered pars. relating to Subsec. (a)(162). Pub. L. 106–357 added par. (162). East Fork of Jemez, New Mexico, and Pecos River, New 1999—Subsec. (a). Pub. L. 106–20, § 2(g)(1), struck out Mexico. unnumbered par. added by Pub. L. 104–208 relating to 1989—Subsec. (a)(62). Pub. L. 101–40, § 2(a)(1), (2), des- Elkhorn Creek, which was identical to par. added by ignated unnumbered par. relating to Merced River, Pub. L. 104–333, § 1023(h). California, as (62) and redesignated former par. (62) as Subsec. (a)(157) to (159). Pub. L. 106–20, § 2(g)(2), des- (63). ignated unnumbered pars. relating to Clarion River, Subsec. (a)(63). Pub. L. 101–40, § 2(a)(2), redesignated Lamprey River, and Elkhorn Creek as pars. (157) to former par. (62), relating to Kings River, California, as (159), respectively. (63). Subsec. (a)(160). Pub. L. 106–20, § 2(b), added par. (160). Subsec. (a)(64). Pub. L. 101–40, § 2(a)(3), designated un- 1996—Subsec. (a). Pub. L. 104–333, §§ 405(a), 1023(h), numbered par. relating to Kern River, California, as added unnumbered pars. relating to Lamprey River, (64). New Hampshire and Elkhorn Creek. Subsec. (a)(65). Pub. L. 101–40, § 2(a)(4), (6), designated Pub. L. 104–314 added unnumbered par. relating to unnumbered par. relating to Bluestone River, West Vir- Clarion River, Pennsylvania. ginia, as (65) and redesignated former par. (65) as (67). Pub. L. 104–208 added unnumbered par. relating to Subsec. (a)(66). Pub. L. 101–40, § 2(a)(5), designated un- Elkhorn Creek. numbered par. relating to Sipsey Fork of the West Subsec. (a)(65). Pub. L. 104–333, § 406(d), substituted Fork River, Alabama, as (66). ‘‘BLUE–80,005, dated May 1996’’ for ‘‘WSR–BLU/20,000, Subsec. (a)(67). Pub. L. 101–40, § 2(a)(6), redesignated and dated January 1987’’ and inserted at end ‘‘In order former par. (65), relating to Wildcat River, New Hamp- to provide reasonable public access and vehicle parking shire, as (67). for public use and enjoyment of the river designated by Subsec. (a)(68) to (107). Pub. L. 101–40, § 2(a)(7), des- this paragraph, consistent with the preservation and ignated unnumbered pars. relating to rivers in Oregon enhancement of the natural and scenic values of such as (68) to (107). river, the Secretary may, with the consent of the owner Subsec. (a)(108). Pub. L. 101–40, § 2(a)(8), designated thereof, negotiate a memorandum of understanding or unnumbered par. relating to Rio Chama River, New cooperative agreement, or acquire not more than 10 Mexico, as (108). acres of lands or interests in such lands, or both, as 1988—Subsec. (a). Pub. L. 100–633 added unnumbered may be necessary to allow public access to the Blue- par. relating to Rio Chama, New Mexico. stone River and to provide, outside the boundary of the Pub. L. 100–557 added unnumbered pars. relating to scenic river, parking and related facilities in the vicin- the following rivers in Oregon: Big Marsh Creek, ity of the area known as Eads Mill.’’ Chetco, Clackamas, Crescent Creek, Crooked, Subsec. (a)(109) to (156). Pub. L. 104–333, § 407(a), redes- Deschutes, Donner und Blitzen, Eagle Creek, Elk, ignated unnumbered pars. relating to various rivers as Grande Ronde, Imnaha, John Day, Joseph Creek, Little pars. (109) to (156). Deschutes, Lostine, Malheur, McKenzie, Metolius, 1994—Subsec. (a). Pub. L. 103–313 added unnumbered Minam, North Fork Crooked, North Fork John Day, par. relating to Farmington River, Connecticut. North Fork Malheur, North Fork of the Middle Fork of Pub. L. 103–242 added unnumbered par. relating to Rio the Willamette, North Fork Owyhee, North Fork Grande, New Mexico. Smith, North Fork Sprague, North Powder, North Subsec. (a)(19). Pub. L. 103–437 substituted ‘‘Natural Umpqua, Powder, Quartzville Creek, Roaring, Salmon, Resources’’ for ‘‘Interior and Insular Affairs’’ after Sandy, South Fork John Day, Squaw Creek, Sycan, ‘‘Committee on’’. Upper Rogue, Wenaha, West Little Owyhee, and White. 1993—Subsec. (a). Pub. L. 103–170 added unnumbered Pub. L. 100–547 added unnumbered par. relating to par. relating to Red River, Kentucky. Sipsey Fork of the West Fork, Alabama. Pub. L. 103–162 added unnumbered pars. relating to Pub. L. 100–534, § 301, added unnumbered par. relating the following rivers in New Jersey: Maurice River, to Bluestone, West Virginia. Menantico Creek, Manumuskin River, and Muskee Subsec. (a)(60). Pub. L. 100–668 inserted sentence de- Creek. scribing boundaries of Klickitat River. 1992—Subsec. (a). Pub. L. 102–536 added unnumbered Subsec. (a)(65). Pub. L. 100–554 added par. (65) relating par. relating to Great Egg Harbor, New Jersey. to Wildcat River, New Hampshire. Pub. L. 102–301 added unnumbered pars. relating to Subsec. (b). Pub. L. 100–534, § 501, amended subsec. (b) the following rivers in California: Sespe Creek, Sisquoc generally. Prior to amendment, subsec. (b) read as fol- River, and Big Sur River. lows: ‘‘The agency charged with the administration of Pub. L. 102–275 added unnumbered pars. relating to each component of the national wild and scenic rivers the following rivers in Arkansas: Big Piney Creek, Buf- system designated by subsection (a) of this section falo River, Cossatot River, Hurricane Creek, Little Mis- shall, within one year from the date of designation of souri River, Mulberry River, North Sylamore Creek, such component under subsection (a) of this section and Richland Creek. (except where a different date is provided in subsection Page 1625 TITLE 16—CONSERVATION § 1274

(a) of this section), establish detailed boundaries there- Subsec. (a)(51). Pub. L. 98–444, § 2, added par. (51) set for (which boundaries shall include an average of not out second relating to Au Sable, Michigan. more than 320 acres of land per mile measured from the Pub. L. 98–406 added par. (51) appearing first relating ordinary high water mark on both sides of the river); to Verde, Arizona. determine which of the classes outlined in section Subsec. (a)(52). Pub. L. 98–494 added par. (52) appear- 1273(b) of this title best fit the river or its various seg- ing second relating to Illinois, Oregon. ments. Notice of the availability of the boundaries and Pub. L. 98–425 added par. (52) appearing first relating classification, and of subsequent boundary amendments to Tuolumne, California. shall be published in the Federal Register and shall not Subsec. (a)(53). Pub. L. 98–494 added par. (53). become effective until ninety days after they have been 1980—Subsec. (a)(6). Pub. L. 96–580 authorized acquisi- forwarded to the President of the Senate and the tion of part of Velie Estate acreage. Speaker of the House of Representatives.’’ Subsec. (a)(22). Pub. L. 96–344 substituted in provision 1987—Subsec. (a). Pub. L. 100–174 added unnumbered following subpar. (B) ‘‘which shall be established’’ for par. relating to North and South Fork of the Kern ‘‘which may be established’’. River, California. Subsec. (a)(24). Pub. L. 96–312 added par. (24). Pub. L. 100–149 added unnumbered par. relating to Subsec. (a)(25) to (37). Pub. L. 96–487, § 601, added pars. Merced, California. (25) to (37). Subsec. (a)(56) to (61). Pub. L. 100–150, § 1(b), redesig- Subsec. (a)(38) to (43). Pub. L. 96–487, § 602, added pars. nated former par. (56), relating to Cache la Poudre, as (38) to (43). (57), former par. (57), relating to Saline Bayou, as (58), Subsec. (a)(44) to (50). Pub. L. 96–487, § 603, added pars. former par. (58), relating to Black Creek, as (59), and (44) to (50). designated pars. relating to Klickitat and White Salm- 1979—Subsec. (a)(19). Pub. L. 96–87 substituted ‘‘sec- on as pars. (60) and (61), respectively. tion 704(c) of the National Parks and Recreation Act of Subsec. (a)(62). Pub. L. 100–150, § 1(a), added par. (62). 1978’’ for ‘‘section 705(c) of the National Parks and 1986—Subsec. (a)(51) to (55). Pub. L. 99–530 and Pub. L. Recreation Act of 1978’’. 99–590, § 501(a), amended subsec. (a) identically, redesig- 1978—Subsec. (a)(10). Pub. L. 95–625, § 755, increased nating the pars. relating to the Au Sable River, the appropriations authorization for Chattooga River to Tuolumne River, the Illinois River, and the Owyhee $5,200,000 from $2,000,000. River as pars. (52) through (55), respectively. Subsec. (a)(16) to (23). Pub. L. 95–625, §§ 701–703, 704(a), Subsec. (a)(56). Pub. L. 99–590, § 101, added par. (56) ap- 705–708, added pars. (16) to (23). pearing second relating to Cache la Poudre, Colorado. Subsec. (b). Pub. L. 95–625, § 763(a), inserted ‘‘(except Pub. L. 99–530 added par. (56) appearing first relating where a different date is provided in subsection (a) of to Horsepasture, North Carolina. this section)’’ after ‘‘one year from October 2, 1968’’. Subsec. (a)(57), (58). Pub. L. 99–590, §§ 401, 601, added 1976—Subsec. (a)(3). Pub. L. 94–486, § 601, inserted pars. (57) and (58). ‘‘downstream from the confluence of its tributary Subsec. (a)(59), (60). Pub. L. 99–663 added two unnum- streams one kilometer south of Beckwourth, Califor- bered pars., relating to Klickitat, Washington, and nia;’’ after ‘‘entire Middle Fork’’. White Salmon, Washington, which were editorially des- Subsec. (a)(13). Pub. L. 94–486, § 101, added par. (13). ignated as pars. (59) and (60), respectively. Subsec. (a)(14). Pub. L. 94–486, § 201, added par. (14). Subsec. (b). Pub. L. 99–590, § 501(b)(1)(A), substituted Subsec. (a)(15). Pub. L. 94–486, § 301, added par. (15). ‘‘one year from the date of designation of such compo- 1975—Subsec. (a)(11), (12). Pub. L. 94–199 added pars. nent under subsection (a) of this section’’ for ‘‘one year (11) and (12). from October 2, 1968’’. 1974—Subsec. (a)(10). Pub. L. 93–279 added par. (10). Pub. L. 99–590, § 501(b)(1)(B), which directed the 1972—Subsec. (a)(9). Pub. L. 92–560 added par. (9). amendment of subsec. (b) as follows: ‘‘Strike out the second parenthetical statement, ‘(which boundaries CHANGE OF NAME shall include an average of not more than 320 acres of land per mile measured from the ordinary high water ‘‘Frank Church—River of No Return Wilderness’’ sub- mark on both sides of the river)’ ’’, could not be exe- stituted in subsec. (a)(24)(D) for ‘‘River of No Return cuted because the quoted parenthetical statement did Wilderness’’ pursuant to Pub. L. 98–231, § 1, Mar. 14, not appear in text. Rather, the amendment was exe- 1984, 98 Stat. 60, which redesignated the River of No Re- cuted by substituting the quoted parenthetical for turn Wilderness as the Frank Church—River of No Re- ‘‘(which boundaries shall include an average of not turn Wilderness. more than three hundred and twenty acres per mile on Ex. Ord. No. 13428, Apr. 2, 2007, 72 F.R. 16693, provided both sides of the river)’’ as the probable intent of Con- that the Caribbean National Forest in the Common- gress in view of the directory wording in H.R. 4350 as wealth of Puerto Rico, referred to in subsec. (a)(166), is introduced, reported, and passed by the House on Apr. renamed the ‘‘El Yunque National Forest’’. 8, 1986, which read: ‘‘Strike out the second parenthet- SAVINGS PROVISIONS ical statement and substitute the parenthetical state- ment’’. Pub. L. 111–11, title I, § 1203(a)(2), Mar. 30, 2009, 123 Pub. L. 99–590, § 501(b)(1)(C), struck out ‘‘; and prepare Stat. 1012, provided that: ‘‘The amendments made by a plan for necessary developments in connection with paragraph (1) [amending this section] do not affect its administration in accordance with such classifica- valid existing water rights.’’ tion’’ after ‘‘its various segments’’. Pub. L. 111–11, title I, § 1303(a), Mar. 30, 2009, 123 Stat. Pub. L. 99–590, § 501(b)(2), substituted ‘‘Notice of the 1026, provided that: ‘‘Nothing in this subtitle [subtitle availability of the boundaries and classification, and of D (§§ 1301–1303) of title I of Pub. L. 111–11, amending this subsequent boundary amendments’’ for ‘‘Said bound- section and enacting and amending provisions listed in aries, classification, and development plans’’. a table of Wilderness Areas set out under section 1132 Subsecs. (c), (d). Pub. L. 99–590, § 501(b)(3), added sub- of this title] shall be construed as diminishing any secs. (c) and (d). right of any Indian tribe.’’ 1984—Subsec. (a)(16). Pub. L. 98–444, § 1, inserted ‘‘Not- Pub. L. 111–11, title I, § 1805(b), Mar. 30, 2009, 123 Stat. withstanding any other provision of this chapter, the 1059, provided that: ‘‘The designation of Piru Creek installation and operation of facilities or other activi- under subsection (a) [amending this section] shall not ties within or outside the boundaries of the Pere Mar- affect valid rights in existence on the date of enact- quette Wild and Scenic River for the control of the ment of this Act [Mar. 30, 2009].’’ lamprey eel should be permitted subject to such re- Pub. L. 111–11, title I, § 1976(c), Mar. 30, 2009, 123 Stat. strictions and conditions as the Secretary of Agri- 1088, provided that: ‘‘The amendment made by sub- culture may prescribe for the protection of water qual- section (a) [amending this section] does not affect the ity and other values of the river, including the wild and agreement among the United States, the State [of scenic characteristics of the river.’’ Utah], the Washington County Water Conservancy Dis- § 1274 TITLE 16—CONSERVATION Page 1626 trict, and the Kane County Water Conservancy District the Interior on the Farmington River Coordinating entitled ‘Zion National Park Water Rights Settlement Committee; directed Secretary to offer to enter into Agreement’ and dated December 4, 1996.’’ cooperative agreements with the State, its relevant po- litical subdivisions, and Farmington River Watershed ALASKA; ADMINISTRATION OF WILD AND SCENIC RIVER Association to facilitate the long-term protection, con- SEGMENTS servation, and enhancement of designated river seg- Section 605 of Pub. L. 96–487 provided for administra- ment; distinguished implementation of this Act from tion of Wild and Scenic River segments of following National Park Service administration of river segment Alaska rivers: Alagnak, Beaver Creek, Delta, Forty- and excluded river segment from National Park Sys- mile, Alatna, Aniakchak, Charley, Chilikadrotna, tem; provided for evaluation of proposed water re- John, Kobuk, Mulchatna, Noatak, North Fork of the sources project; accepted local zoning ordinances; de- Koyukuk, Salmon, Tinayguk, Tlikakila, Andreafsky, fined ‘‘Committee’’, ‘‘Plan’’, and ‘‘Secretary’’; and au- Ivishak, Nowitna, Selawik, Sheenjek, Wind, Birch thorized the appropriation of funds necessary to carry Creek, Gulkana, Unalakleet, Mosquito Fork, Champion out Pub. L. 103–313. Creek, Middle Fork, O’Brien Creek, Napoleon Creek, Franklin Creek, Uhler Creek, Walker Fork, West Fork, Dennison Fork, Logging Cabin Creek, Hutchinson DELAWARE AND PENNSYLVANIA; ADMINISTRATION OF Creek. WILD AND SCENIC RIVER SEGMENTS OF WHITE CLAY CREEK ARKANSAS; STATE MANAGEMENT OF SEGMENTS OF COSSATOT RIVER AND BRUSHY CREEK Pub. L. 106–357, §§ 4–8, Oct. 24, 2000, 114 Stat. 1395, 1396, Section 3 of Pub. L. 102–275 provided that 10.4-mile provided for administration of Wild and Scenic River segment of the Cossatot River and 0.3-mile segment of segments of White Clay Creek, establishment of de- the Brushy Creek tributary were to be managed by the tailed boundaries, cooperative agreements with White State of Arkansas as parts of the Wild and Scenic Riv- Clay Creek Watershed Management Committee, rep- ers System. resentation of Secretary of the Interior by Director of COLORADO; ADMINISTRATION OF WILD AND SCENIC the National Park Service in implementation of man- RIVER SEGMENTS OF CACHE LA POUDRE RIVER; NON- agement plan, and authorization of the Secretary to INTERFERENCE WITH EXISTING DECREED WATER provide assistance and funding for implementation of RIGHTS management plan; required that existing State and local zoning laws and ordinances be considered satisfac- Section 102 of Pub. L. 99–590 provided that inclusion tory under section 1277(c) of this title with respect to of designated portions of Cache la Poudre River in Wild White Clay Creek river segments; and prohibited Fed- and Scenic Rivers System did not interfere with exer- eral acquisition of lands or interests in lands along cise of existing decreed water rights to water which had White Clay Creek river segments and inclusion in Na- theretofore been stored or diverted by means of present tional Park System. capacity of storage, conveyance, or diversion struc- tures that existed as of Oct. 30, 1986, or operation and maintenance of such structures, nor could inclusion of FLORIDA; ADMINISTRATION OF WILD AND SCENIC RIVER designated portions of Cache la Poudre River in Wild SEGMENTS OF WEKIVA RIVER and Scenic Rivers System be utilized in any Federal proceeding, whether concerning a license, permit, Pub. L. 106–299, §§ 4–6, Oct. 13, 2000, 114 Stat. 1052–1054, right-of-way, or other Federal action, as a reason or provided for administration of Wild and Scenic River basis to prohibit development or operation of any water segments of Wekiva River, use of cooperative agree- impoundments, diversion facilities, and hydroelectric ments, biennial review of compliance with comprehen- power and transmission facilities below Poudre Park sive management plan, reports to Congress on devi- located entirely downstream from and potentially af- ations from such plans which could diminish value of fecting designated portions of Cache la Poudre River, river segments, planning assistance to local political or relocation of highway 14 to any point east of the jurisdictions, and establishment of the Wekiva River north-south half section line of section 2, township 8 System Advisory Management Committee; and author- north, range 71 west of the sixth principal meridian, as ized appropriations. necessary to provide access to Poudre Park around such facilities. IDAHO; SALMON AND SNAKE RIVERS; CONSTRUCTION CONNECTICUT; MANAGEMENT OF WILD AND SCENIC PROHIBITED ON RIVER SEGMENTS RIVER SEGMENT OF EIGHTMILE RIVER; COORDINATING COMMITTEE; COOPERATIVE AGREEMENTS; LAND MAN- Pub. L. 100–677, § 1, Nov. 17, 1988, 102 Stat. 4407, prohib- AGEMENT; WATERSHED APPROACH ited Federal Energy Regulatory Commission from issu- Pub. L. 110–229, title III, § 344(c)–(h), May 8, 2008, 122 ing any preliminary permit, license, or exemption from Stat. 799, 800, provided that the segments of the main licensing for construction of any dam, diversion or by- stem and certain tributaries of the Eightmile River in pass under Federal Power Act (41 Stat. 1063), as amend- Connecticut designated as components of the National ed [see section 791a of this title], on: (1) the Salmon Wild and Scenic Rivers System be managed in accord- River, Idaho, from Long Tom Bar to the confluence of ance with the Eightmile River Watershed Management the Snake River, or (2) the Snake River, Idaho, from Plan; directed the Secretary of the Interior to coordi- the eastward extension of the north boundary of sec- nate management responsibilities of the Secretary tion 1, township 5 north, range 47 east, Willamette Me- with the Eightmile River Coordinating Committee; au- ridian to the pool formed behind Lower Granite Dam, thorized the Secretary of the Interior to enter into co- and provided that no dam may be constructed on those operative agreements with State and local officials; di- segments of the Salmon or Snake Rivers. rected that the Eightmile River not be administered as part of the National Park System; deemed certain local zoning ordinances to satisfy the standards and require- IDAHO; WILD AND SCENIC RIVER SEGMENTS BOUNDARIES ments of provisions of the Wild and Scenic Rivers Act; AND PRIVATE LAND ACQUISITION and provided for a watershed approach to resource pres- ervation and enhancement. Pub. L. 111–11, title I, § 1504(b), (c), Mar. 30, 2009, 123 Stat. 1039, established an outer limit for the boundaries CONNECTICUT; MANAGEMENT OF WILD AND SCENIC of the river segments added to the National Wild and RIVER SEGMENT OF FARMINGTON RIVER; DEFINITIONS; Scenic Rivers System by subtitle F (§ 1501–1508) of title AUTHORIZATION OF APPROPRIATIONS I of Pub. L. 111–11, notwithstanding subsec. (b) of this Sections 4 to 6 of Pub. L. 103–313 provided that Direc- section, and prohibited the Secretary of the Interior tor of the National Park Service represent Secretary of from acquiring private land within the exterior bound- Page 1627 TITLE 16—CONSERVATION § 1274 ary of a wild and scenic river corridor without consent 24, 1991], funds are not authorized and appropriated for of the owner. the construction of a water resources project on the 6- mile segment of the Niobrara River from its confluence IDAHO AND OREGON; ADMINISTRATION OF WILD AND with Chimney Creek to its confluence with Rock Creek, SCENIC RIVER SEGMENTS OF SNAKE RIVER AND RAPID at the expiration of such 5-year period the 6-mile seg- RIVER ment shall be designated as a component of the Na- Section 3(b) of Pub. L. 94–199 provided for administra- tional Wild and Scenic Rivers System by operation of tion of Wild and Scenic River segments of Snake River, law, to be administered by the Secretary of the Interior Idaho and Oregon, and Rapid River, Idaho. in accordance with sections 4 and 5 of this Act [see below] and the applicable provisions of the Wild and MASSACHUSETTS; MANAGEMENT OF WILD AND SCENIC Scenic Rivers Act (16 U.S.C. 1271–1287). The Secretary of RIVER SEGMENTS OF TAUNTON RIVER the Interior shall publish notification to that effect in Pub. L. 111–11, title V, § 5003(b), Mar. 30, 2009, 123 Stat. the Federal Register.’’ 1152, provided for management of certain wild and sce- NEW HAMPSHIRE; LAMPREY RIVER ADVISORY nic river segments of the Taunton River pursuant to COMMITTEE the Taunton River Stewardship Plan. Section 405(b) of title IV of div. I of Pub. L. 104–333, MASSACHUSETTS; ADMINISTRATION OF WILD AND SCENIC as amended by Pub. L. 106–176, title I, § 106(b), Mar. 10, RIVER SEGMENTS OF SUDBURY, ASSABET, AND CON- 2000, 114 Stat. 26; Pub. L. 106–192, § 2(b)(1), May 2, 2000, CORD RIVERS; AUTHORIZATION OF APPROPRIATIONS 114 Stat. 233, provided that Secretary of the Interior Pub. L. 106–20, § 2(c)–(f), Apr. 9, 1999, 113 Stat. 31, 32, coordinate his management responsibilities with re- provided for Federal role in management of Wild and spect to Lamprey River, New Hampshire, with Lamprey Scenic River segments of Sudbury, Assabet, and Con- River Advisory Committee, that zoning ordinances cord Rivers, directed Secretary of the Interior to con- adopted by towns of Epping, Durham, Lee, and New- sider extent to which proposed water resources projects market, New Hampshire, be deemed to satisfy section were consistent with management of river segments, 1277(c) of this title, and that Secretary’s land acquisi- limited rights of United States Government to acquire tion be limited to acquisition by donation or acquisi- interests in land along river segments, and authorized tion with consent of donor and be subject to additional $100,000 to be appropriated for each fiscal year to carry criteria of Lamprey River Management Plan. out management plan. NEW JERSEY; ADMINISTRATION OF WILD AND SCENIC RIVER SEGMENTS OF MAURICE AND MANUMUSKIN RIV- MICHIGAN; ADMINISTRATION OF WILD, SCENIC, AND REC- ERS AND MENANTICO AND MUSKEE CREEKS REATIONAL RIVER SEGMENTS DESIGNATED UNDER MICHIGAN SCENIC RIVERS ACT OF 1991 Section 3 of Pub. L. 103–162 provided for administra- tion of Wild and Scenic River segments of Maurice and Section 6 of Pub. L. 102–249 provided that Pub. L. Manumuskin Rivers and Menantico and Muskee 102–249, the Michigan Scenic Rivers Act of 1991, did not Creeks, New Jersey, planning assistance to local politi- enlarge, diminish, or modify responsibilities of the cal subdivisions, segment additions, and appropriations State of Michigan regarding hunting, fishing, and trap- to carry out administrative functions. ping with reference to designated river segments, that facilities and activities for control of sea lamprey were NEW JERSEY; ADMINISTRATION OF WILD AND SCENIC allowed, that traditional public access routes to des- RIVER SEGMENTS OF GREAT EGG HARBOR RIVER ignated river segments were to be maintained with con- Section 2 of Pub. L. 102–536 provided for administra- ditions, and that the Act did not enlarge, diminish, or tion of Wild and Scenic River segments of Great Egg modify the limitation on land acquisition contained in Harbor River, New Jersey, review of local river man- section 1277(b) of this title. agement plans, biennial review of compliance with MINNESOTA AND WISCONSIN; ADMINISTRATION OF WILD local river management plans, reports to Congress on AND SCENIC RIVER OF LOWER SAINT CROIX RIVER deviations from such plans which could diminish value of river segments, and authorization of appropriations. Sections 3–6 of Pub. L. 92–560 provided for administra- tion of Wild and Scenic River segments of Lower Saint NEW JERSEY; ADMINISTRATION OF WILD AND SCENIC Croix River along Minnesota-Wisconsin border, acquisi- RIVER SEGMENTS OF MUSCONETCONG RIVER tion of property, maintenance of navigation rights, and Pub. L. 109–452, §§ 3, 5, Dec. 22, 2006, 120 Stat. 3363, 3364, authorization of appropriations. defined terms, provided that Secretary of the Interior MISSOURI; ADMINISTRATION OF ELEVEN POINT WILD manage certain Musconetcong River segments in New AND SCENIC CORRIDOR Jersey in accordance with management plan in co- operation with appropriate agencies, provided for des- Pub. L. 102–220, § 3, Dec. 11, 1991, 105 Stat. 1674, author- ignation of additional river segment, and authorized ized Secretary to manage lands, waters, and interests appropriations to carry out Pub. L. 109–452. within The Eleven Point Wild and Scenic Corridor pur- suant to the provisions of this chapter. See section 3 of NEW JERSEY AND PENNSYLVANIA; ADMINISTRATION OF Pub. L. 102–220 set out as a note under section 539h of WILD AND SCENIC RIVER SEGMENTS OF LOWER DELA- this title. WARE RIVER AND ASSOCIATED TRIBUTARIES

MONTANA; ADMINISTRATION OF WILD AND SCENIC RIVER Pub. L. 106–418, §§ 4, 5, Nov. 1, 2000, 114 Stat. 1818, 1821, SEGMENT OF MISSOURI RIVER provided for administration of Wild and Scenic River segments of Lower Delaware River in accordance with Section 202 and 203 of Pub. L. 94–486, as amended Pub. the Lower Delaware River Management Plan and in co- L. 100–552, § 5, Oct. 28, 1988, 102 Stat. 2768, provided for operation with Federal, State, regional, and local agen- administration of wild and scenic river segment of the cies, provided that the Plan be considered to satisfy Missouri River known as Missouri Breaks Freeflowing subsec. (d) of this section, provided that zoning ordi- River segment, establishment of detailed boundaries, nances of municipalities bordering the segments be acquisition of lands and interests in lands, and con- considered to satisfy section 1277(c) of this title, and struction of visitor facilities in or near Fort Benton. contained provisions relating to consideration of the effect of proposed water resources projects on the seg- NEBRASKA; NIOBRARA RIVER; DESIGNATION OF 6-MILE ments, requirements for cooperative agreements, provi- SEGMENT AS COMPONENT OF NATIONAL WILD AND sion by the Secretary of the Interior of planning, finan- SCENIC RIVERS SYSTEM cial, and technical assistance, designation of certain Section 3(b) of Pub. L. 102–50 provided that: ‘‘If, with- additional segments as a recreational river or scenic in 5 years after the date of enactment of this Act [May river, and authorization of appropriations. § 1275 TITLE 16—CONSERVATION Page 1628

NEW MEXICO; RIO GRANDE CITIZENS ADVISORY BOARD IX, § 901(g)(2), Nov. 10, 1998, 112 Stat. 3290, set acreage Section 4 of Pub. L. 103–242 directed Secretary of the limits on lands acquired by Secretary of the Interior Interior, acting through Director of the Bureau of Land along the segments of the Niobrara River designated Management, to obtain and consider views of residents under section 2 of Pub. L. 102–50, provided for establish- of village of Pilar and of owners of property adjoining ment of the Niobrara Scenic River Advisory Commis- Rio Grande River segments concerning implementation sion, required establishment of a recreational river ad- of Pub. L. 103–242. visory group by Secretary to be consulted in the ad- ministration of the segment of the Missouri River des- NEW YORK AND PENNSYLVANIA; ADMINISTRATION OF ignated under section 2 of Pub. L. 102–50, directed that WILD AND SCENIC RIVER SEGMENT OF UPPER DELA- the designation of the river segment not place any ad- WARE RIVER ditional requirements on placement of bridges, author- Section 704(b)–(j) of Pub. L. 95–625, as amended Pub. ized use of erosion control techniques to protect water L. 96–87, title IV, § 401(p)(2), Oct. 12, 1979, 93 Stat. 666; resource values along designated river segment, called Pub. L. 100–412, § 1, Aug. 22, 1988, 102 Stat. 1100, provided for study of feasibility and suitability of possible des- for administration of Upper Delaware River along New ignation of lands in Knox and Boyd Counties, Nebraska, York-Pennsylvania border between Hancock, New as a national recreation area, and authorized appro- York, and Sparrow Bush, New York, including creation priation of sums necessary to carry out provisions of of Upper Delaware Citizens Advisory Council. See also Pub. L. 102–50. Pub. L. 106–119, Dec. 3, 1999, 113 Stat. 1604. UTAH; INCORPORATION OF ACQUIRED NON-FEDERAL OREGON; ADMINISTRATION OF INDIAN TREATY LANDS LAND AND AUTHORIZATION OF APPROPRIATIONS FOR WILD Pub. L. 111–11, title I, § 1976(b), Mar. 30, 2009, 123 Stat. AND SCENIC RIVER SEGMENTS 1088, provided that: ‘‘If the United States acquires any Sections 105 and 106 of Pub. L. 100–557 provided for ad- non-Federal land within or adjacent to Zion National ministration of, and authorization of appropriations Park that includes a river segment that is contiguous for, segments of the following Oregon rivers: Big Marsh to a river segment of the Virgin River designated as a Creek, Chetco, Clackamas, Crescent Creek, Crooked, wild, scenic, or recreational river by paragraph (204) of Deschutes, Donner and Blitzen, Eagle Creek, Elk, section 3(a) of the Wild and Scenic Rivers Act (16 U.S.C. Grant Ronde, Imnaha, John Day, Joseph Creek, Little 1274(a)) (as added by subsection (a)), the acquired river Deschutes, Lostine, Malheur, McKenzie, Metolius, segment shall be incorporated in, and be administered Minam, North Fork Crooked, North Fork John Day, as part of, the applicable wild, scenic, or recreational North Fork Malheur, North Fork of the Middle Fork of river.’’ the Millamette, North Fork Owyhee, North Fork Smith, North Fork Sprague, North Powder, North WEST VIRGINIA; WILD AND SCENIC RIVER SEGMENTS OF Umpqua, Powder, Quartzville Creek, Roaring, Salmon, BLUESTONE AND MEADOW RIVERS; PUBLIC AWARENESS Sandy, South Fork John Day, Squaw Creek, Sycan, PROGRAM Upper Rogue, Wenaha, West Little Owyhee, and White. Section 403 of Pub. L. 100–534 directed Secretary of PENNSYLVANIA; ALLEGHENY RIVER; DESIGNATION OF the Interior to establish a public awareness program to SEGMENTS AS WILD AND SCENIC RIVER; ADVISORY be carried out in Mercer, Nicholas, and Greenbrier COUNCILS; ADMINISTRATION; AUTHORIZATION OF AP- Counties, West Virginia, in cooperation with State and PROPRIATIONS local agencies, landowners, and other concerned organi- zations, to further public understanding of the effects Sections 1, 2, 3, and 6 of Pub. L. 102–271 provided that of designation as components of National Wild and Sce- the designated portions of the Allegheny River were so designated in order to preserve and protect for present nic Rivers System of segments of Bluestone and Mead- and future generations outstanding scenic, natural, ow Rivers which were found eligible in studies com- recreational, scientific, historic, and ecological values pleted by National Park Service in August 1983 but and to protect, preserve, and enhance the fisheries re- which were not designated as units of such system, sources associated with the designated segments, di- with Secretary to submit a report to Committee on In- rected the Secretary of Agriculture to establish advi- terior and Insular Affairs of United States House of sory councils to advise the Secretary on the establish- Representatives and to Committee on Energy and Nat- ment of final boundaries and management of river seg- ural Resources of United States Senate by Dec. 31, 1992, ments, directed the Secretary of Agriculture to take describing the program. the necessary steps for the administration of the des- WYOMING; DEFINITIONS; ADMINISTRATION OF WILD AND ignated river segments, and authorized the appropria- SCENIC RIVER SEGMENTS OF SNAKE RIVER HEADWATERS tion of the funds necessary to carry out Pub. L. 102–271, which amended sections 1274 and 1276 of this title. Pub. L. 111–11, title V, § 5002(c), (e), Mar. 30, 2009, 123 Stat. 1148, 1150, provided for administration of Wild and PUERTO RICO; RIVERS OF CARIBBEAN NATIONAL FOR- Scenic River segments of Snake River Headwaters; re- EST; SPECIAL MANAGEMENT CONSIDERATIONS; PRESER- quired Secretary concerned to develop a management VATION OF COMMONWEALTH AUTHORITY plan for each such river segment and apply for quan- Pub. L. 107–365, § 2(c), (d), Dec. 19, 2002, 116 Stat. 3028, tification of water rights reserved by each such river provided that the amendment by section 2(b) of Pub. L. segment; allowed such Secretary to carry out activities 107–365 to this section and the applicability of this at United States Geological Survey stream gauges on chapter to segments of the rivers of Caribbean National the Snake River; prohibited such Secretary’s acquisi- Forest (now El Yunque National Forest) were not to be tion of property or interest in property within such construed to prevent various scientific research activi- river segments without owner’s consent; and enacted ties within the boundaries of these river segments, but savings provisions. that those activities were subject to such conditions as the Secretary of Agriculture considered desirable, and § 1275. Additions to national wild and scenic riv- provided that section 2 of Pub. L. 107–365, amending ers system this section, did not limit the authority of the Com- monwealth of Puerto Rico over its waters and natural (a) Reports by Secretaries of the Interior and Ag- channels of public domain. riculture; recommendations to Congress; con- tents of reports SOUTH DAKOTA AND NEBRASKA; ADMINISTRATION OF WILD AND SCENIC RIVER SEGMENTS OF NIOBRARA AND The Secretary of the Interior or, where na- MISSOURI RIVERS tional forest lands are involved, the Secretary of Pub. L. 102–50, §§ 4–7, 8, formerly § 9, May 24, 1991, 105 Agriculture or, in appropriate cases, the two Stat. 255–258; § 9 renumbered § 8, Pub. L. 105–362, title Secretaries jointly shall study and submit to Page 1629 TITLE 16—CONSERVATION § 1275 the President reports on the suitability or non- ies who prepared the report within ninety days suitability for addition to the national wild and of the date on which the report is submitted to scenic rivers system of rivers which are des- them, together with the Secretary’s or Secretar- ignated herein or hereafter by the Congress as ies’ comments thereon, shall be included with potential additions to such system. The Presi- the transmittal to the President and the Con- dent shall report to the Congress his recom- gress. mendations and proposals with respect to the (c) Publication in Federal Register designation of each such river or section thereof Before approving or disapproving for inclusion under this chapter. Such studies shall be com- in the national wild and scenic rivers system pleted and such reports shall be made to the any river designated as a wild, scenic or rec- Congress with respect to all rivers named in sec- reational river by or pursuant to an act of a tion 1276(a) (1) through (27) of this title no later State legislature, the Secretary of the Interior than October 2, 1978. In conducting these studies shall submit the proposal to the Secretary of the Secretary of the Interior and the Secretary Agriculture, the Secretary of the Army, the Sec- of Agriculture shall give priority to those rivers retary of Energy, and the head of any other af- (i) with respect to which there is the greatest fected Federal department or agency and shall likelihood of developments which, if under- evaluate and give due weight to any recom- taken, would render the rivers unsuitable for in- mendations or comments which the said offi- clusion in the national wild and scenic rivers cials furnish him within ninety days of the date system, and (ii) which possess the greatest pro- on which it is submitted to them. If he approves portion of private lands within their areas. the proposed inclusion, he shall publish notice Every such study and plan shall be coordinated thereof in the Federal Register. with any water resources planning involving the same river which is being conducted pursuant to (d) Areas comprised by boundaries; scope of the Water Resources Planning Act [42 U.S.C. study report 1962 et seq.]. The boundaries of any river proposed in sec- Each report, including maps and illustrations, tion 1276(a) of this title for potential addition to shall show among other things the area included the National Wild and Scenic Rivers System within the report; the characteristics which do shall generally comprise that area measured or do not make the area a worthy addition to within one-quarter mile from the ordinary high the system; the current status of land ownership water mark on each side of the river. In the case and use in the area; the reasonably foreseeable of any designated river, prior to publication of potential uses of the land and water which boundaries pursuant to section 1274(b) of this would be enhanced, foreclosed, or curtailed if title, the boundaries also shall comprise the the area were included in the national wild and same area. This subsection shall not be con- scenic rivers system; the Federal agency (which strued to limit the possible scope of the study in the case of a river which is wholly or substan- report to address areas which may lie more than tially within a national forest, shall be the De- one-quarter mile from the ordinary high water partment of Agriculture) by which it is proposed mark on each side of the river. the area, should it be added to the system, be (Pub. L. 90–542, § 4, Oct. 2, 1968, 82 Stat. 909; Pub. administered; the extent to which it is proposed L. 93–279, § 1(b)(1), May 10, 1974, 88 Stat. 122; Pub. that such administration, including the costs L. 93–621, § 1(d), Jan. 3, 1975, 88 Stat. 2096; Pub. L. thereof, be shared by State and local agencies; 94–486, title V, § 501, Oct. 12, 1976, 90 Stat. 2330; and the estimated cost to the United States of Pub. L. 95–91, title III, § 301(b), Aug. 4, 1977, 91 acquiring necessary lands and interests in land Stat. 578; Pub. L. 99–590, title V, § 502, Oct. 30, and of administering the area, should it be 1986, 100 Stat. 3335.) added to the system. Each such report shall be printed as a Senate or House document. REFERENCES IN TEXT (b) Study of report by affected Federal and State The Water Resources Planning Act, referred to in officials; recommendations and comments; subsec. (a), is Pub. L. 89–80, July 22, 1965, 79 Stat. 244, transmittal to President and Congress as amended, which is classified generally to chapter 19B (§ 1962 et seq.) of Title 42, The Public Health and Before submitting any such report to the Welfare. For complete classification of this Act to the President and the Congress, copies of the pro- Code, see Short Title note set out under section 1962 of posed report shall, unless it was prepared jointly Title 42 and Tables. by the Secretary of the Interior and the Sec- AMENDMENTS retary of Agriculture, be submitted by the Sec- retary of the Interior to the Secretary of Agri- 1986—Subsec. (d). Pub. L. 99–590 added subsec. (d). culture or by the Secretary of Agriculture to the 1976—Subsec. (b). Pub. L. 94–486 struck out provision which directed that no river be added to the national Secretary of the Interior, as the case may be, wild and scenic river system after October 2, 1968, until and to the Secretary of the Army, the Secretary the close of the next full session of the State legisla- of Energy, the head of any other affected Fed- ture or legislatures, if more than one State was in- eral department or agency and, unless the lands volved, which began following submission of the pro- proposed to be included in the area are already posed addition to the President. owned by the United States or have already been 1975—Subsec. (a). Pub. L. 93–621, in first paragraph, authorized for acquisition by Act of Congress, designated provision relating to the developments, the Governor of the State or States in which which, if undertaken, would render the rivers unsuit- able for inclusion in the system as cl. (i), and added cl. they are located or an officer designated by the (ii). Governor to receive the same. Any recommenda- 1974—Subsec. (a). Pub. L. 93–279, in first paragraph, tions or comments on the proposal which the substituted provisions requiring submission of reports said officials furnish the Secretary or Secretar- to the President on the suitability or nonsuitability for § 1276 TITLE 16—CONSERVATION Page 1630 addition to the national wild and scenic river system of (14) Moyie, Idaho: The segment from the Cana- rivers designated by Congress as potential additions to dian border to its confluence with the Kootenai such system, and submission by President of recom- River. mendations and proposals to the Congress, for provi- (15) Obed, Tennessee: The entire river and its sions for submission of proposals to the President and the Congress, struck out reference to section 1273(b) of tributaries, Clear Creek and Daddys Creek. this title and administration by an agency of the (16) Penobscot, Maine: Its east and west United States, inserted provisions that the studies re- branches. lating to rivers named in section 1276(a) of this title be (17) Pere Marquette, Michigan: The entire completed by Oct. 2, 1978, and that the Secretary of the river. Interior and the Secretary of Agriculture give priority (18) Pine Creek, Pennsylvania: The segment to rivers which may be unsuitable for inclusion in the from Ansonia to Waterville. national wild and scenic river system if developments (19) Priest, Idaho: The entire main stem. were undertaken, and in second paragraph, substan- (20) Rio Grande, Texas: The portion of the tially incorporated the existing provisions with minor changes. river between the west boundary of Hudspeth County and the east boundary of Terrell County TRANSFER OF FUNCTIONS on the United States side of the river: Provided, ‘‘Secretary of Energy’’ substituted for ‘‘Chairman of That before undertaking any study of this po- the Federal Power Commission’’ in subsecs. (b) and (c) tential scenic river, the Secretary of the Inte- pursuant to Pub. L. 95–91, § 301(b), which is classified to rior shall determine, through the channels of ap- section 7151(b) of Title 42, The Public Health and Wel- propriate executive agencies, that Mexico has no fare. objection to its being included among the stud- Federal Power Commission terminated and its func- tions, personnel, property, funds, etc., transferred to ies authorized by this chapter. Secretary of Energy (except for certain functions trans- (21) Saint Croix, Minnesota and Wisconsin: ferred to Federal Energy Regulatory Commission) by The segment between the dam near Taylors sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title Falls and its confluence with the Mississippi 42. River. (22) Saint Joe, Idaho: The entire main stem. § 1276. Rivers constituting potential additions to (23) Salmon, Idaho: The segment from the national wild and scenic rivers system town of North Fork to its confluence with the (a) Enumeration of designated rivers Snake River. The following rivers are hereby designated for (24) Skagit, Washington: The segment from potential addition to the national wild and sce- the town of Mount Vernon to and including the nic rivers system: mouth of Bacon Creek; the Cascade River be- (1) Allegheny, Pennsylvania: The segment tween its mouth and the junction of its North from its mouth to the town of East Brady, Penn- and South Forks; the South Fork to the bound- sylvania. ary of the Glacier Peak Wilderness Area; the (2) Bruneau, Idaho: The entire main stem. Suiattle River from its mouth to the Glacier (3) Buffalo, Tennessee: The entire river. Peak Wilderness Area boundary at Milk Creek; (4) Chattooga, North Carolina, South Carolina, the Sauk River from its mouth to its junction and Georgia: The entire river. with Elliott Creek; the North Fork of the Sauk (5) Clarion, Pennsylvania: The segment be- River from its junction with the South Fork of tween Ridgway and its confluence with the Alle- the Sauk to the Glacier Peak Wilderness Area gheny River. boundary. (6) Delaware, Pennsylvania and New York: The (25) Suwannee, Georgia and Florida: The en- segment from Hancock, New York, to tire river from its source in the Okefenokee Matamoras, Pennsylvania. Swamp in Georgia to the gulf and the outlying (7) Flathead, Montana: The North Fork from Ichetucknee Springs, Florida. the Canadian border downstream to its con- (26) Upper Iowa, Iowa: The entire river. fluence with the Middle Fork; the Middle Fork (27) Youghiogheny, Maryland and Pennsyl- from its headwaters to its confluence with the vania: The segment from Oakland, Maryland, to South Fork; and the South Fork from its origin the Youghiogheny Reservoir, and from the to Hungry Horse Reservoir. Youghiogheny Dam downstream to the town of (8) Gasconade, Missouri: The entire river. Connellsville, Pennsylvania. (9) Illinois, Oregon: The entire river. (28) American, California: The North Fork (10) Little Beaver, Ohio: The segment of the from the Cedars to the Auburn Reservoir. North and Middle Forks of the Little Beaver (29) Au Sable, Michigan: The segment down- River in Columbiana County from a point in the stream from Foot Dam to Oscoda, and upstream vicinity of Negly and Elkton, Ohio, downstream from Loud Reservoir to its source, including its to a point in the vicinity of East Liverpool, principal tributaries and excluding Mio and Ohio. Bamfield Reservoirs. (11) Little Miami, Ohio: That segment of the (30) Big Thompson, Colorado: The segment main stem of the river, exclusive of its tribu- from its source to the boundary of Rocky Moun- taries, from a point at the Warren-Clermont tain National Park. County line at Loveland, Ohio, upstream to the (31) Cache la Poudre, Colorado: Both forks sources of Little Miami including North Fork. from their sources to their confluence, thence (12) Maumee, Ohio and Indiana: The main stem the Cache la Poudre to the eastern boundary of from Perrysburg, Ohio, to Fort Wayne, Indiana, Roosevelt National Forest. exclusive of its tributaries in Ohio and inclusive (32) Cahaba, Alabama: The segment from its of its tributaries in Indiana. junction with United States Highway 31 south of (13) Missouri, Montana: The segment between Birmingham downstream to its junction with Fort Benton and Ryan Island. United States Highway 80 west of Selma. Page 1631 TITLE 16—CONSERVATION § 1276

(33) Clark’s Fork, Wyoming: The segment from (55) Yampa, Colorado: The segment within the the Clark’s Fork Canyon to the Crandall Creek boundaries of the Dinosaur National Monument. Bridge. (56) Dolores, Colorado: The segment of the (34) Colorado, Colorado and Utah: The segment main stem from Rico upstream to its source, in- from its confluence with the Dolores River, cluding its headwaters; the West Dolores from Utah, upstream to a point 19.5 miles from the its source, including its headwaters, down- Utah-Colorado border in Colorado. stream to its confluence with the main stem; (35) Conejos, Colorado: The three forks from and the segment from the west boundary, sec- their sources to their confluence, thence the tion 2, township 38 north, range 16 west, NMPM, Conejos to its first junction with State Highway below the proposed McPhee Dam, downstream to 17, excluding Platoro Reservoir. the Colorado-Utah border, excluding the seg- (36) Elk, Colorado: The segment from its ment from one mile above Highway 90 to the source to Clark. confluence of the San Miguel River. (37) Encampment, Colorado: The Main Fork (57) Snake, Washington, Oregon, and Idaho: and West Fork to their confluence, thence the The segment from an eastward extension of the Encampment to the Colorado-Wyoming border, north boundary of section 1, township 5 north, including the tributaries and headwaters. range 47 east, Willamette meridian, downstream (38) Green, Colorado: The entire segment with- to the town of Asotin, Washington. in the State of Colorado. (58) Housatonic, Connecticut: The segment (39) Gunnison, Colorado: The segment from the from the Massachusetts-Connecticut boundary upstream (southern) boundary of the Black Can- downstream to its confluence with the Shepaug yon of the Gunnison National Monument to its River. confluence with the North Fork. (59) Kern, California: The main stem of the (40) Illinois, Oklahoma: The segment from North Fork from its source to Isabella Reservoir Tenkiller Ferry Reservoir upstream to the Ar- excluding its tributaries. kansas-Oklahoma border, including the Flint (60) Loxahatchee, Florida: The entire river in- and Barren Fork Creeks. cluding its tributary, North Fork. (41) John Day, Oregon: The main stem from (61) Ogeechee, Georgia: The entire river. Service Creek Bridge (at river mile 157) down- (62) Salt, Arizona: The main stem from a point stream to Tumwater Falls (at river mile 10). on the north side of the river intersected by the (42) Kettle, Minnesota: The entire segment Fort Apache Indian Reservation boundary within the State of Minnesota. (north of Buck Mountain) downstream to Ari- (43) Los Pinos, Colorado: The segment from its zona State Highway 288. source, including the tributaries and headwaters (63) Verde, Arizona: The main stem from the within the San Juan Primitive Area, to the Prescott National Forest boundary near Paulden northern boundary of the Granite Peak Ranch. to the vicinity of Table Mountain, approxi- (44) Manistee, Michigan: The entire river from mately 14 miles above Horseshoe Reservoir, ex- its source to Manistee Lake, including its prin- cept for the segment not included in the na- cipal tributaries and excluding Tippy and tional forest between Clarkdale and Camp Hodenpyl Reservoirs. Verde, North segment. (45) Nolichuckey, Tennessee and North Caro- (64) San Francisco, Arizona: The main stem lina: The entire main stem. from confluence with the Gila upstream to the (46) Owyhee, South Fork, Oregon: The main Arizona-New Mexico border, except for the seg- stem from the Oregon-Idaho border downstream ment between Clifton and the Apache National to the Owyhee Reservoir. Forest. (47) Piedra, Colorado: The Middle Fork and (65) Fish Creek, New York: The entire East East Fork from their sources to their con- Branch. fluence, thence the Piedra to its junction with (66) Black Creek, Mississippi: The segment Colorado Highway 160. from Big Creek Landing in Forrest County (48) Shepaug, Connecticut: The entire river. downstream to Old Alexander Bridge Landing in (49) Sipsey Fork, West Fork, Alabama: The Stone County. segment, including its tributaries, from the im- (67) Allegheny, Pennsylvania: The main stem poundment formed by the Lewis M. Smith Dam from Kinzua Dam downstream to East Brady. upstream to its source in the William B. Bank- (68) Cacapon, West Virginia: The entire river. head National Forest. (69) Escatawpa, Alabama and Mississippi: The (50) Snake, Wyoming: The segment from the segment upstream from a point approximately southern boundaries of Teton National Park to one mile downstream from the confluence of the the entrance to Palisades Reservoir. Escatawpa River and Jackson Creek to a point (51) Sweetwater, Wyoming: The segment from where the Escatawpa River is joined by the Wilson Bar downstream to Spring Creek. Yellowhouse Branch in Washington County, Ala- (52) Tuolumne, California: The main river bama, near the town of Deer Park, Alabama; and from its source on Mount Dana and Mount Lyell the segment of Brushy Creek upstream from its in Yosemite National Park to Don Pedro Res- confluence with the Escatawpa to its confluence ervoir. with Scarsborough Creek. (53) Upper Mississippi, Minnesota: The seg- (70) Myakka, Florida: The segment south of ment from its source at the outlet of Itasca the southern boundary of the Myakka River Lake to its junction with the northwestern State Park. boundary of the city of Anoka. (71) Soldier Creek, Alabama: The segment be- (54) Wisconsin, Wisconsin: The segment from ginning at the point where Soldier Creek inter- Prairie du Sac to its confluence with the Mis- sects the south line of section 31, township 7 sissippi River at Prairie du Chien. south, range 6 east, downstream to a point on § 1276 TITLE 16—CONSERVATION Page 1632 the south line of section 6, township 8 south, dian Reservation, Washington, as described in range 6 east, which point is 1,322 feet west of the the Treaty with the Yakimas of 1855 (12 Stat. south line of section 5, township 8 south, range 951), and as acknowledged by the Indian Claims 6 east in the county of Baldwin, State of Ala- Commission in Yakima Tribe of Indians v. U.S., bama. 16 Ind. Cl. Comm. 536 (1966), to its confluence (72) Red, Kentucky: The segment from High- with the Little Klickitat River, Washington: way numbered 746 (also known as Spradlin Provided, That said study shall be carried on in Bridge) in Wolf County, Kentucky, downstream consultation with the Yakima Indian Nation to the point where the river descends below and shall include a determination of the degree seven hundred feet above sea level (in its normal to which the Yakima Indian Nation should par- flow) which point is at the Menifee and Powell ticipate in the preservation and administration County line just downstream of the iron bridge of the river segment should it be proposed for in- where Kentucky Highway numbered 77 passes clusion in the Wild and Scenic Rivers system. over the river. (95) WHITE SALMON, WASHINGTON: The segment (73) Bluestone, West Virginia: From its head- from its confluence with Trout Lake Creek, waters to its confluence with the New. Washington, to its confluence with Gilmer (74) Gauley, West Virginia: Including the trib- Creek, Washington, near the town of B Z Cor- utaries of the Meadow and the Cranberry, from ner, Washington. the headwaters to its confluence with the New. (96) MAURICE, NEW JERSEY.—The segment from (75) Greenbrier, West Virginia: From its head- Shell Pile to the point three miles north of Lau- waters to its confluence with the New. rel Lake. (76) Birch, West Virginia: The main stem from (97) MANUMUSKIN, NEW JERSEY.—The segment the Cora Brown Bridge in Nicholas County to from its confluence with the Maurice River to the confluence of the river with the Elk River in the crossing of State Route 49. Braxton County. (98) MENANTICO CREEK, NEW JERSEY.—The seg- (77) Colville, Alaska. ment from its confluence with the Maurice (78) Etivluk-Nigu, Alaska. River to its source. (79) Utukok, Alaska. (99) MERCED, CALIFORNIA.—The segment from a (80) Kanektok, Alaska. point 300 feet upstream of the confluence with (81) Kisaralik, Alaska. (82) Melozitna, Alaska. Bear Creek downstream to the point of maxi- (83) Sheenjek (lower segment), Alaska. mum flood control storage of Lake McClure (ele- (84) Situk, Alaska. vation 867 feet mean sea level). (85) Porcupine, Alaska. (100) BLUE, OREGON.—The segment from its (86) Yukon (Ramparts section), Alaska. headwaters to the Blue River Reservoir; by the (87) Squirrel, Alaska. Secretary of Agriculture. (88) Koyuk, Alaska. (101) CHEWAUCAN, OREGON.—The segment from (89) Wildcat Brook, New Hampshire: The seg- its headwaters to the Paisley Urban Growth ment from its headwaters including the prin- boundary to be studied in cooperation with, and cipal tributaries to its confluence with the Ellis integrated with, the Klamath River Basin Plan; River. The study authorized in this paragraph by the Secretary of Agriculture. shall be completed no later than six years from (102) NORTH FORK MALHEUR, OREGON.—The seg- June 19, 1984, and an interim report shall be pre- ment from the Malheur National Forest bound- pared and submitted to the Congress no later ary to Beulah Reservoir; by the Secretary of the than three years from June 19, 1984. Interior. (90) Horsepasture, North Carolina: The seg- (103) SOUTH FORK MCKENZIE, OREGON.—The ment from Bohaynee Road (N.C. 281) down- segments from its headwaters to the upper end stream to Lake Jocassee. of Cougar Reservoir and from the lower end of (91) The North Umpqua, Oregon: The segment Cougar Reservoir to its confluence with the from the Soda Springs Powerhouse to the con- McKenzie River; by the Secretary of Agri- fluence of Rock Creek. The provisions of section culture. 1278(a) of this title shall apply to tributary (104) STEAMBOAT CREEK, OREGON.—The entire Steamboat Creek in the same manner as such creek; by the Secretary of Agriculture. provisions apply to the rivers referred to in such (105) WALLOWA, OREGON.—The segment from section 1278(a) of this title. The Secretary of Ag- its confluence with the Minam River to its con- riculture shall, in the Umpqua National Forest fluence with the Grande Ronde River; by the plan, provide that management practices for Secretary of Agriculture. Steamboat Creek and its immediate environ- (106) MERRIMACK RIVER, NEW HAMPSHIRE.—The ment conserve, protect, and enhance the anad- segment from its origin at the confluence of the romous fish habitat and population. Pemigewasset and Winnipesaukee Rivers in (92) Farmington, West Branch, Connecticut Franklin, New Hampshire, to the backwater im- and Massachusetts: The segment from the inter- poundment at Hooksett Dam, excluding the Gar- section of the New Hartford-Canton, Connecti- vins Falls Dam and its impoundment. cut, town line upstream to the base of the West (107) PEMIGEWASSET, NEW HAMPSHIRE.—The Branch Reservoir in Hartland, Connecticut; and segments from Profile Lake downstream to the the segment from the confluence with Thorp southern boundary of the Franconia Notch State Brook in Sandisfield, Massachusetts, to Hayden Park and from the northern Thornton town-line Pond in Otis, Massachusetts. downstream to the backwater of the Ayers Is- (93) Great Egg Harbor River, New Jersey: The land Dam; by the Secretary of the Interior. entire river. (108) ST. MARYS RIVER, FLORIDA AND GEOR- (94) KLICKITAT, WASHINGTON: The segment GIA.—The segment from its headwaters to its from the southern boundary of the Yakima In- confluence with the Bells River. Page 1633 TITLE 16—CONSERVATION § 1276

(109) MILLS RIVER, NORTH CAROLINA.—The South Branch White in section 25, township 13 North Fork from the bottom of the spillway of north, range 16 west, to McLaren Lake in sec- the Hendersonville Reservoir downstream to its tion 11, township 14 north, range 15 west. confluence with the South Fork; the South Fork (118) ONTONAGON, MICHIGAN.—The 32-mile seg- from its confluence with the Pigeon Branch ment of the Ontonagon as follows: downstream to its confluence with the North (A) The 12-mile segment of the West Branch Fork; and the main stem from the confluence of from the Michigan State Highway 28 crossing the North and South Forks downstream to a to Cascade Falls. point 750 feet upstream from the centerline of (B) The 20-mile segment of the South Branch North Carolina Highway 191/280. from the confluence of the Cisco Branch and (110) SUDBURY, ASSABET, AND CONCORD, Tenmile Creek to the confluence with the 1 MASSACHUSSETS. —The segment of the Sudbury West Branch Ontonagon. from the Danforth Street Bridge in the town of Framingham, to its confluence with the (119) PAINT, MICHIGAN.—The 70-mile segment Assabet, the Assabet from 1,000 feet downstream as follows: of the Damon Mill Dam in Concord to its con- (A) 34 miles of the mainstream beginning at fluence with the Sudbury and the Concord from the eastern boundary of the Ottawa National the confluence of the Sudbury and Assabet Forest in section 1, township 44 north, range 35 downstream to the Route 3 Bridge in the town of west, to the city of Crystal Falls. Billerica. The study of such river segments shall (B) 15 miles of the mainstream of the Net be completed and the report submitted thereon River from its confluence with the east and not later than at the end of the third fiscal year west branches to its confluence with the main- beginning after November 28, 1990. stream of the Paint River. (111) NIOBRARA, NEBRASKA.—The 6-mile seg- (C) 15 miles of the east branch of the Net ment of the river from its confluence with Chim- River from its source in section 8, township 47 ney Creek to its confluence with Rock Creek. north, range 32 west, to its confluence with (112) LAMPREY, NEW HAMPSHIRE.—The segment the mainstream of the Net River in section 24, from the southern Lee town line downstream to township 46 north, range 34 west. the confluence with Woodman’s Brook at the (D) 14 miles of the west branch of the Net base of Sullivan Falls in Durham. River from its source in section 35, township 48 (113) WHITE CLAY CREEK, DELAWARE AND PENN- north, range 34 west, to its confluence with SYLVANIA.—The headwaters of the river in Penn- the mainstream of the Net River in section 24, sylvania to its confluence with the Christina township 46 north, range 34 west. River in Delaware, including the East, West, and (120) PRESQUE ISLE, MICHIGAN.—The 13-mile Middle Branches, Middle Run, Pike Creek, Mill segment of the mainstream from Minnewawa Creek, and other main branches and tributaries Falls to Lake Superior. as determined by the Secretary of the Interior (121) STURGEON, OTTAWA NATIONAL FOREST, (herein after referred to as the White Clay MICHIGAN.—The 36-mile segment of the main- Creek). stream from the source at Wagner Lake in sec- (114) BRULE, MICHIGAN AND WISCONSIN.—The 33- tion 13, township 49 north, range 31 west, to the mile segment from Brule Lake in the northeast eastern boundary of the Ottawa National Forest quarter of section 15, township 41 north, range 13 in section 12, township 48 north, range 35 west. east, to the National Forest boundary at the (122) STURGEON, HIAWATHA NATIONAL FOREST, southeast quarter of section 31, township 41 MICHIGAN.—The 18.1-mile segment from Sixteen north, range 17 east. Mile Lake to the north line of section 26, town- (115) CARP, MICHIGAN.—The 7.6-mile segment ship 43 north, range 19 west. from its origin at the confluence of the outlets (123) TAHQUAMENON, MICHIGAN.—The 103.5-mile of Frenchman Lake and Carp Lake in section 26, segment as follows— township 44 north, range 6 west, to the west sec- (A) the 90-mile segment of the mainstream tion line of section 30, township 43 north, range beginning at the source in section 21, township 5 west. 47 north, range 12 west, to the mouth at (116) LITTLE MANISTEE, MICHIGAN.—The 42-mile Whitefish Bay; and segment within the Huron-Manistee National (B) the 13.5-mile segment of the east branch Forest. from the western boundary of the Hiawatha (117) WHITE, MICHIGAN.—The 75.4-mile segment National Forest in section 19, township 46 within the Huron-Manistee National Forest as north, range 6 west, to its confluence with the follows: (A) The 30.8-mile segment of the main stem mainstream. from U.S. 31 to the Huron-Manistee National (124) WHITEFISH, MICHIGAN.—The 26-mile seg- Forest boundary at the north line of section 2, ment of the West Branch Whitefish from its township 13 north, range 15 west, 1.5 miles source in section 26, township 46 north, range 23 southwest of Hesperia. west, to County Road 444. (B) The 18.9-mile segment of the South (125) CLARION, PENNSYLVANIA.—The segment of Branch White from the Huron-Manistee Na- the main stem of the river from Ridgway to its tional Forest boundary east of Hesperia at the confluence with the Allegheny River. The Sec- west line of section 22, township 14 north, retary of Agriculture shall conduct the study of range 14 west, to Echo Drive, section 6, town- such segment. ship 13 north, range 12 west. (126) MILL CREEK, JEFFERSON AND CLARION (C) The 25.7-mile segment of the North COUNTIES, PENNSYLVANIA.—The segment of the Branch White from its confluence with the main stem of the creek from its headwaters near Gumbert Hill in Jefferson County, downstream 1 So in original. Probably should be ‘‘MASSACHUSETTS.’’ to the confluence with the Clarion River. § 1276 TITLE 16—CONSERVATION Page 1634

(127) PIRU CREEK, CALIFORNIA.—The segment of instrumentality of the United States to carry the main stem of the creek from its source out the project purposes of that project as of Oc- downstream to the maximum pool of Pyramid tober 26, 1992. The study of the river segment Lake and the segment of the main stem of the identified in this paragraph shall be completed creek beginning 300 feet below the dam at Pyra- and reported on within one year after October mid Lake downstream to the maximum pool at 26, 1992. Lake Piru, for a total distance of approximately (135) RIO GRANDE, NEW MEXICO.—The segment 49 miles. from the west section line of Section 15, Town- (128) LITTLE SUR RIVER, CALIFORNIA.—The seg- ship 23 North, Range 10 East, downstream ap- ment of the main stem of the river from its proximately 8 miles to the southern line of the headwaters downstream to the Pacific Ocean, a northwest quarter of Section 34, Township 23 distance of approximately 23 miles. The Sec- North, Range 9 East. retary of Agriculture shall consult with the Big (136) WEKIVA RIVER, FLORIDA.—(A) The entire Sur Multiagency Advisory Council during the river. study of the river. (B) The Seminole Creek tributary. (129) MATILIJA CREEK, CALIFORNIA.—The seg- (C) The Rock Springs Run tributary. ment from its headwaters to its junction with (137) TAUNTON RIVER, MASSACHUSETTS.—The Murietta Canyon, a distance of approximately 16 segment downstream from the headwaters, from miles. the confluence of the Town River and the (130) LOPEZ CREEK, CALIFORNIA.—The segments Matfield River in Bridgewater to the confluence from its headwaters to Lopez Reservoir, a dis- with the Forge River in Raynham, Massachu- tance of approximately 11 miles. setts. (131) SESPE CREEK, CALIFORNIA.—The segment (138) EIGHTMILE RIVER, CONNECTICUT.—The seg- from Chorro Grande Canyon downstream to its ment from its headwaters downstream to its confluence with Rock Creek and Howard Creek, confluence with the Connecticut River. a distance of about 10.5 miles. (139) LOWER FARMINGTON RIVER AND SALMON (132) NORTH FORK MERCED, CALIFORNIA.—The BROOK, CONNECTICUT.—The segment of the segment from its headwaters to its confluence Farmington River downstream from the seg- with the Merced River, by the Secretary of Agri- ment designated as a recreational river by sec- culture and the Secretary of the Interior. tion 1274(a)(156) of this title to its confluence (133) DELAWARE RIVER, PENNSYLVANIA AND NEW with the Connecticut River, and the segment of JERSEY.—(A) The approximately 3.6-mile seg- the Salmon Brook including its mainstream and ment from the Erie Lackawanna Railroad east and west branches. Bridge to the southern tip of Dildine Island. (140) MISSISQUOI AND TROUT RIVERS, VERMONT.— (B) The approximately 2-mile segment from The approximately 25-mile segment of the upper the southern tip of Mack Island to the northern Missisquoi from its headwaters in Lowell to the border of the town of Belvidere, New Jersey. Canadian border in North Troy, the approxi- (C) The approximately 12.5-mile segment from mately 25-mile segment from the Canadian bor- the southern border of the town of Belvidere, der in East Richford to Enosburg Falls, and the New Jersey, to the northern border of the city of approximately 20-mile segment of the Trout Easton, Pennsylvania, excluding river mile 196.0 River from its headwaters to its confluence with to 193.8. the Missisquoi River. (D) The approximately 9.5-mile segment from (b) Studies and reports the southern border of the town of Phillipsburg, New Jersey, to a point just north of the Gilbert (1) The studies of rivers named in subpara- Generating Station. graphs (28) through (55) of subsection (a) of this (E) The approximately 14.2-mile segment from section shall be completed and reports thereon a point just south of the Gilbert Generating Sta- submitted by not later than October 2, 1979: Pro- tion to a point just north of the Point Pleasant vided, That with respect to the rivers named in Pumping Station. subparagraphs (33), (50), and (51), the Secretaries (F) The approximately 6.5-mile segment from shall not commence any studies until (i) the a point just south of the Point Pleasant Pump- State legislature has acted with respect to such ing Station to the north side of the Route 202 rivers or (ii) one year from January 3, 1975, bridge. whichever is earlier. Studies of the river 2 named (G) The approximately 6-mile segment from in paragraphs (38), (55), (83), and (87) shall be the southern boundary of the town of New Hope, completed and the reports transmitted to the Pennsylvania, to the town of Washington Cross- Congress not later than January 1, 1987. ing, Pennsylvania. (2) The study of the river named in subpara- (H) The Cook’s Creek tributary. graph (56) of subsection (a) of this section shall (I) The Tinicum Creek tributary. be completed and the report thereon submitted (J) The Tohickon Creek tributary. by not later than January 3, 1976. (134) NEW RIVER, WEST VIRGINIA AND VIR- (3) The studies of the rivers named in para- GINIA.—The segment defined by public lands graphs (59) through (76) of subsection (a) of this commencing at the U.S. Route 460 bridge over section shall be completed and reports submit- the New River in Virginia to the maximum sum- ted thereon not later than five full fiscal years mer pool elevation (one thousand four hundred after November 10, 1978. The study of rivers and ten feet above mean sea level) of Bluestone named in paragraphs (62) through (64) of sub- Lake in West Virginia; by the Secretary of the section (a) of this section shall be completed and Interior. Nothing in this chapter shall affect or the report thereon submitted by not later than impair the management of the Bluestone project or the authority of any department, agency or 2 So in original. Probably should be ‘‘rivers’’. Page 1635 TITLE 16—CONSERVATION § 1276

April 1981. The study of the river named in para- and the report submitted not later than 3 years graph (90) of subsection (a) of this section shall after December 11, 1991. be completed not later than three years after (B) In carrying out the study, the Secretary of October 17, 1984. The study of the river named in the Interior shall prepare a map of the White paragraph (93) of subsection (a) of this section Clay Creek watershed in Delaware and Pennsyl- shall be completed not later than three years vania, and shall develop a recommended man- after October 30, 1986. agement plan for the White Clay Creek. The (4) For the purposes of conducting the studies plan shall provide recommendations as to the of rivers named in subsection (a) of this section, protection and management of the White Clay there are authorized to be appropriated such Creek, including the role the State and local sums as necessary. governments, and affected landowners, should (5) The studies of the rivers in paragraphs (77) play in the management of the White Clay through (88) shall be completed and reports Creek if it is designated as a component of the transmitted thereon not later than three full National Wild and Scenic Rivers System. fiscal years from December 2, 1980. For the riv- (C) The Secretary shall prepare the study, in- ers listed in paragraphs (77), (78), and (79) the cluding the recommended management plan, in studies prepared and transmitted to the Con- cooperation and consultation with appropriate gress pursuant to section 6505(c) of title 42 shall State and local governments, and affected land- satisfy the requirements of this section. owners. (13) The study of segments of the Brule, Carp, (6) Studies of rivers listed in paragraphs (80) Little Manistee, White, Paint, Presque Isle, and (81) shall be completed, and reports submit- Ontonagon, Sturgeon (Hiawatha), Sturgeon (Ot- ted within and not later than the time when the tawa), Whitefish, and Tahquamenon Rivers in Bristol Bay Cooperative Region Plan is submit- 3 Michigan under subsection (a) of this section ted to Congress in accordance with section 3183 shall be completed by the Secretary of Agri- of this title. culture and the report submitted thereon not (7) The study of the West Branch of the Farm- later than at the end of the third fiscal year be- ington River identified in paragraph (92) of sub- ginning after March 3, 1992. For purposes of such section (a) of this section shall be completed and river studies, the Secretary shall consult with the report submitted thereon not later than the each River Study Committee authorized under end of the third fiscal year beginning after Octo- section 5 of the Michigan Scenic Rivers Act of ber 30, 1986. Such report shall include a discus- 1990,5 and shall encourage public participation sion of management alternatives for the river if and involvement through hearings, workshops, it were to be included in the national wild and and such other means as are necessary to be ef- scenic river system. fective. (8) The study of the Merrimack River, New (14)(A) The study of the Delaware River seg- Hampshire, shall be completed and the report ments and tributaries designated for potential thereon submitted not later than three years addition to the National Wild and Scenic Rivers after August 10, 1990. System pursuant to subsection (a)( ) 6 of this (9) The study of the Pemigewasset River, New section shall be completed and the report sub- Hampshire, shall be completed and the report mitted to Congress not later than one year after thereon submitted not later than three years October 23, 1992. after August 10, 1990. (B) The Secretary shall— (10) The study of the river named in paragraph (i) prepare the study in cooperation and con- (106) 4 of subsection (a) of this section shall be sultation with appropriate Federal, State, re- completed not later than three years after Au- gional, and local agencies, including but not gust 15, 1990. In carrying out the study, the Sec- limited to, the Pennsylvania Department of retary of the Interior shall consult with the Environmental Resources, the New Jersey De- Governors of the States of Florida and Georgia partment of Environmental Protection and or their representatives, representatives of af- Energy, the Delaware and Lehigh Navigation fected local governments, and owners of land ad- Canal National Heritage Corridor Commission, jacent to the river. Such consultation shall in- and the Delaware and Raritan Canal Commis- clude participation in the assessment of re- sion; and source values and the development of alter- (ii) consider previous plans for the protec- natives for the protection of those resource val- tion of affected cultural, recreational, and ues, and shall be carried out through public natural resources (including water supply and meetings and media notification. The study water quality) and existing State and local shall also include a recommendation on the part regulations, so as to avoid unnecessary dupli- of the Secretary as to the role the States, local cation. governments and landowners should play in the (C) Pursuant to section 1282(b)(1) of this title, management of the river if it were designated as the Secretary shall undertake a river conserva- a component of the National Wild and Scenic tion plan for the segment of the Delaware River Rivers System. from the northern city limits of Trenton, New (11) The study of the Lamprey River, New Jersey, to the Southern 7 boundary of Bucks Hampshire, shall be completed by the Secretary County, Pennsylvania. of the Interior and the report thereon submitted (15) The study of the Rio Grande in New Mex- not later than 3 years after December 11, 1991. ico shall be completed and the report submitted (12)(A) The study of the White Clay Creek in not later than 3 years after May 4, 1994. Delaware and Pennsylvania shall be completed 5 See References in Text note below. 3 See Codification note below. 6 So in original. Probably should be subsection ‘‘(a)(133)’’. 4 So in original. Probably should be ‘‘(108)’’. 7 So in original. Probably should not be capitalized. § 1276 TITLE 16—CONSERVATION Page 1636

(16) The study of the Wekiva River and the Wild and Scenic Rivers System. Such study tributaries designated in paragraph (136) of sub- shall be completed, and a report containing the section (a) of this section shall be completed and results of the study shall be submitted to Con- the report transmitted to Congress not later gress by April 1, 1990. Nothing in this paragraph than two years after October 19, 1996. shall affect the authority or responsibilities of (17) TAUNTON RIVER, MASSACHUSETTS.—Not any other Federal agency with respect to activi- later than 3 years after October 19, 2000, the Sec- ties or actions on this segment and its imme- retary of the Interior— diate environment. (A) shall complete the study of the Taunton (Pub. L. 90–542, § 5, Oct. 2, 1968, 82 Stat. 910; Pub. River, Massachusetts; and L. 93–279, § 1(b)(2), May 10, 1974, 88 Stat. 123; Pub. (B) shall submit to Congress a report de- L. 93–621, § 1(a), (b), Jan. 3, 1975, 88 Stat. 2094, scribing the results of the study. 2095; Pub. L. 94–199, § 5(a), Dec. 31, 1975, 89 Stat. (18) The study of the Eightmile River, Con- 1118; Pub. L. 94–486, title IV, § 401, title VII, § 701, necticut, named in paragraph (138) of subsection Oct. 12, 1976, 90 Stat. 2330; Pub. L. 95–625, title (a) of this section shall be completed by the Sec- VII, §§ 721–736, title XI, § 1108, Nov. 10, 1978, 92 retary of the Interior and the report thereon Stat. 3530–3532, 3547; Pub. L. 96–87, title IV, § 404, submitted to Congress not later than 3 years Oct. 12, 1979, 93 Stat. 667; Pub. L. 96–199, title I, after November 6, 2001. § 102, Mar. 5, 1980, 94 Stat. 68; Pub. L. 96–487, title (19) MISSISQUOI AND TROUT RIVERS, VERMONT.— VI, § 604, Dec. 2, 1980, 94 Stat. 2415; Pub. L. 98–323, Not later than 3 years after the date on which title II, § 201, June 19, 1984, 98 Stat. 261; Pub. L. funds are made available to carry out this para- 98–484, § 5, Oct. 17, 1984, 98 Stat. 2259; Pub. L. graph, the Secretary of the Interior shall— 98–494, § 2, Oct. 19, 1984, 98 Stat. 2274; Pub. L. (A) complete the study of the Missisquoi and 99–590, title II, § 202(b), (c), title III, § 301, title V, Trout Rivers, Vermont, described in sub- § 503, Oct. 30, 1986, 100 Stat. 3332–3335; Pub. L. section (a)(140); and 99–663, § 13(d), Nov. 17, 1986, 100 Stat. 4294; Pub. L. (B) submit a report describing the results of 100–33, § 1, May 7, 1987, 101 Stat. 299; Pub. L. that study to the appropriate committees of 100–149, § 2, Nov. 2, 1987, 101 Stat. 879; Pub. L. Congress. 100–557, title I, §§ 103, 104, Oct. 28, 1988, 102 Stat. 2790; Pub. L. 101–40, § 2(b), June 20, 1989, 103 Stat. (c) State participation 82; Pub. L. 101–356, §§ 2, 3, Aug. 10, 1990, 104 Stat. The study of any of said rivers shall be pur- 417; Pub. L. 101–357, §§ 2, 3, Aug. 10, 1990, 104 Stat. sued in as close cooperation with appropriate 418; Pub. L. 101–364, § 1, Aug. 15, 1990, 104 Stat. agencies of the affected State and its political 428; Pub. L. 101–538, § 1, Nov. 8, 1990, 104 Stat. subdivisions as possible, shall be carried on 2376; Pub. L. 101–628, title VII, § 703, Nov. 28, 1990, jointly with such agencies if request for such 104 Stat. 4497; Pub. L. 102–50, § 3(a), May 24, 1991, joint study is made by the State and shall in- 105 Stat. 254; Pub. L. 102–214, §§ 2, 3, Dec. 11, 1991, clude a determination of the degree to which the 105 Stat. 1663; Pub. L. 102–215, §§ 3, 4, Dec. 11, 1991, State or its political subdivisions might partici- 105 Stat. 1664; Pub. L. 102–249, § 4, Mar. 3, 1992, 106 pate in the preservation and administration of Stat. 48; Pub. L. 102–271, § 5(a), Apr. 20, 1992, 106 the river should it be proposed for inclusion in Stat. 110; Pub. L. 102–301, § 7(a), June 19, 1992, 106 the national wild and scenic rivers system. Stat. 245; Pub. L. 102–432, § 2, Oct. 23, 1992, 106 (d) Continuing consideration by Federal agen- Stat. 2213; Pub. L. 102–460, § 1(a), (b), Oct. 23, 1992, cies to potential national, wild, scenic and 106 Stat. 2270; Pub. L. 102–525, title IV, § 401, Oct. recreational river areas 26, 1992, 106 Stat. 3441; Pub. L. 103–242, § 3, May 4, 1994, 108 Stat. 611; Pub. L. 104–311, Oct. 19, 1996, (1) In all planning for the use and development 110 Stat. 3818; Pub. L. 104–333, div. I, title IV, of water and related land resources, consider- § 407(b), Nov. 12, 1996, 110 Stat. 4152; Pub. L. ation shall be given by all Federal agencies in- 106–318, §§ 3, 4, Oct. 19, 2000, 114 Stat. 1278; Pub. L. volved to potential national wild, scenic and 107–65, §§ 3, 4, Nov. 6, 2001, 115 Stat. 484; Pub. L. recreational river areas, and all river basin and 109–370, § 2(a), Nov. 27, 2006, 120 Stat. 2643; Pub. L. project plan reports submitted to the Congress 111–11, title V, § 5101(a), (b), Mar. 30, 2009, 123 shall consider and discuss any such potentials. Stat. 1153.) The Secretary of the Interior and the Secretary of Agriculture shall make specific studies and REFERENCES IN TEXT investigations to determine which additional Section 5 of the Michigan Scenic Rivers Act of 1990, wild, scenic and recreational river areas within referred to in subsec. (b)(13), probably means section 5 the United States shall be evaluated in planning of Pub. L. 102–249, Mar. 3, 1992, 106 Stat. 50, known as reports by all Federal agencies as potential al- the Michigan Scenic Rivers Act of 1991, which is not ternative uses of the water and related land re- classified to the Code. sources involved. CODIFICATION (2) The Congress finds that the Secretary of Section 3183 of this title, referred to in subsec. (b)(6), the Interior, in preparing the Nationwide Rivers was in the original ‘‘section 1204 of the Alaska National Inventory as a specific study for possible addi- Interest Lands Conservation Act’’ and has been edi- tions to the National Wild and Scenic Rivers torially translated as section 3183 of this title, which is System, identified the Upper Klamath River section 1203 of that Act, as the probable intent of Con- from below the John Boyle Dam to the Oregon- gress, in view of that Act being enacted without a sec- California State line. The Secretary, acting tion 1204 and section 1203 of that Act relating to the Bristol Bay Cooperative Region Plan. through the Bureau of Land Management, is au- thorized under this subsection to complete a AMENDMENTS study of the eligibility and suitability of such 2009—Subsec. (a)(140). Pub. L. 111–11, § 5101(a), added segment for potential addition to the National par. (140). Page 1637 TITLE 16—CONSERVATION § 1276

Subsec. (b)(19). Pub. L. 111–11, § 5101(b), added par. (19). Subsec. (a)(112). Pub. L. 102–215, § 3, added par. (112). 2006—Subsec. (a)(139). Pub. L. 109–370 added par. (139). Subsec. (b)(11). Pub. L. 102–215, § 4, added par. (11) re- 2001—Subsec. (a)(138). Pub. L. 107–65, § 3, added par. lating to study of White Clay Creek, Delaware and (138). Pennsylvania. Subsec. (b)(18). Pub. L. 107–65, § 4, added par. (18). Pub. L. 102–214, § 3, added par. (11) relating to study of 2000—Subsec. (a)(136). Pub. L. 106–318, § 3(1), des- Lamprey River, New Hampshire. ignated unnumbered par. relating to Wekiva River, 1990—Subsec. (a). Pub. L. 101–628 added unnumbered Florida, as par. (136). par. relating to Sudbury, Assabet, and Concord rivers Subsec. (a)(137). Pub. L. 106–318, § 3(2), added par. (137). in Massachusetts. Subsec. (b)(8), (10). Pub. L. 106–318, § 4(1), redesignated Pub. L. 101–538 added unnumbered par. relating to par. (8) relating to study of St. Marys River, Florida Mills River, North Carolina. and Georgia, as (10). Subsec. (a)(106). Pub. L. 101–364, § 1(a), added par. (106) Subsec. (b)(11) to (14). Pub. L. 106–318, § 4(2)–(4), redes- relating to St. Marys River, Florida and Georgia. ignated par. (11) relating to study of White Clay Creek, Pub. L. 101–356, § 2, added par. (106) relating to Merri- Delaware and Pennsylvania, as (12), par. (11) relating to mack River, New Hampshire. study of segments of Brule, Carp, and other rivers in Subsec. (a)(107). Pub. L. 101–357, § 2, added par. (107). Michigan as (13), and par. (11) relating to study of seg- Subsec. (b)(8). Pub. L. 101–364, § 1(b), added par. (8) re- ments of Delaware River in Pennsylvania and New Jer- lating to study of St. Marys River, Florida and Geor- sey as (14). gia. Subsec. (b)(15). Pub. L. 106–318, § 4(5), designated un- Pub. L. 101–356, § 3, added par. (8) relating to study of numbered par. relating to study of Rio Grande, New Merrimack River, New Hampshire. Mexico, as par. (15). Subsec. (b)(9). Pub. L. 101–357, § 3, added par. (9). Subsec. (b)(16). Pub. L. 106–318, § 4(6), (7), designated 1989—Subsec. (a)(96), (99). Pub. L. 101–40, § 2(b)(1), re- unnumbered par. relating to study of Wekiva River, designated par. (96), relating to Merced River, Califor- Florida, and its tributaries as par. (16) and substituted nia, as par. (99). ‘‘paragraph (136)’’ for ‘‘paragraph ( )’’. Subsec. (a)(100) to (105). Pub. L. 101–40, § 2(b)(2), des- Subsec. (b)(17). Pub. L. 106–318, § 4(8), added par. (17). ignated unnumbered paragraphs relating to rivers in 1996—Subsec. (a). Pub. L. 104–311, § 1, added unnum- Oregon as pars. (100) to (105). bered par. relating to Wekiva River, Florida. 1988—Subsec. (a). Pub. L. 100–557, § 103, added unnum- Subsec. (a)(106), (108). Pub. L. 104–333, § 407(b)(1), redes- bered pars. relating to the following rivers in Oregon: ignated par. (106), relating to St. Marys River, Florida, Blue, Chewaucan, North Fork Malheur, South Fork as (108). McKenzie, Steamboat Creek, and Wallowa. Subsec. (a)(109) to (111). Pub. L. 104–333, § 407(b)(3), Subsec. (d). Pub. L. 100–557, § 104, designated existing designated unnumbered pars. relating to Mills River, provisions as par. (1) and added par. (2). North Carolina, Sudbury, Assabet, and Concord, Massa- 1987—Subsec. (a)(94), (95). Pub. L. 100–149, § 2(b), des- chusetts, and Niobrara, Nebraska, as pars. (109) to (111), ignated pars. relating to Klickitat and White Salmon respectively. as pars. (94) and (95), respectively. Subsec. (a)(112), (113). Pub. L. 104–333, § 407(b)(2), (3), Subsec. (a)(96). Pub. L. 100–149, § 2(a), added par. (96) designated unnumbered par. relating to Lamprey, New relating to Merced, California. Hampshire as par. (112) and redesignated former par. Pub. L. 100–33 added par. (96) relating to Maurice, (112), relating to White Clay Creek, Delaware and Penn- New Jersey. sylvania, as (113). Subsec. (a)(97), (98). Pub. L. 100–33 added pars. (97) and Subsec. (a)(114) to (135). Pub. L. 104–333, § 407(b)(3), (98). designated unnumbered pars. relating to various rivers 1986—Subsec. (a)(90), (91). Pub. L. 99–590, § 503(a), re- as pars. (114) to (135). designated par. (90), relating to North Umpqua, Oregon, Subsec. (b). Pub. L. 104–311, § 2, added unnumbered as par. (91). par. relating to study of Wekiva River, Florida, and its Subsec. (a)(92), (93). Pub. L. 99–590, §§ 201(b), 301(a), tributaries. added pars. (92) and (93). 1994—Subsec. (a). Pub. L. 103–242, § 3(a), added unnum- Subsec. (a)(94), (95). Pub. L. 99–663 added at end two bered par. relating to Rio Grande, New Mexico. unnumbered pars., relating to Klickitat, Washington, Subsec. (b). Pub. L. 103–242, § 3(b), added unnumbered and White Salmon, Washington, which were designated par. relating to study of Rio Grande, New Mexico. as pars. (94) and (95), respectively, by Pub. L. 100–149. 1992—Subsec. (a). Pub. L. 102–525 added unnumbered Subsec. (b)(1). Pub. L. 99–590, § 503(b), inserted provi- par. relating to New River, West Virginia and Virginia. sions relating to completion and transmission of re- Pub. L. 102–460, § 1(a), added unnumbered par. relating ports to Congress not later than Jan. 1, 1987. to Delaware River, Pennsylvania and New Jersey. Subsec. (b)(3). Pub. L. 99–590, § 301(b), inserted provi- Pub. L. 102–432 added unnumbered par. relating to sions relating to completion date of study of river North Fork Merced, California. named in subsec. (a)(93). Pub. L. 102–301 added unnumbered pars. relating to Subsec. (b)(4). Pub. L. 99–590, § 503(c), amended par. (4) the following rivers in California: Piru Creek, Little generally, substituting provisions authorizing appro- Sur River, Matilija Creek, Lopez Creek, and Sespe priations for purposes of conducting studies of rivers Creek. named in subsec. (a), for provisions authorizing appro- Pub. L. 102–271 added unnumbered pars. relating to priations for the purpose of conducting studies of rivers Clarion River and Mill Creek, Pennsylvania. named in pars. (28) through (56), (59) through (76), (90), Pub. L. 102–249, § 4(a), added unnumbered pars. relat- and (93) of subsec. (a). ing to the Brule River in Michigan and Wisconsin, and Pub. L. 99–590, § 301(c), inserted provisions authorizing the following rivers in Michigan: Carp, Little Manistee, an appropriation of not to exceed $150,000 for conduct- White, Ontonagon, Paint, Presque Isle, Sturgeon (Ot- ing study of river named in subsec. (a)(93). tawa National Forest), Sturgeon (Hiawatha National Subsec. (b)(7). Pub. L. 99–590, § 202(c), added par. (7). Forest), Tahquamenon, and Whitefish. 1984—Subsec. (a)(89). Pub. L. 98–323 added par. (89). Subsec. (b)(11). Pub. L. 102–460, § 1(b), added par. (11) Subsec. (a)(90). Pub. L. 98–494 added par. (90) appear- relating to study of segments of Delaware River in ing second relating to North Umpqua, Oregon. Pennsylvania and New Jersey. Pub. L. 98–484, § 5(a), added par. (90) appearing first re- Pub. L. 102–249, § 4(b), added par. (11) relating to study lating to Horsepasture, North Carolina. of segments of Brule, Carp, and other rivers in Michi- Subsec. (b)(3). Pub. L. 98–484, § 5(b), required comple- gan. tion of the study of the Horsepasture River, North 1991—Subsec. (a). Pub. L. 102–214, § 2, added unnum- Carolina, within three years after Oct. 17, 1984. bered par. relating to Lamprey River, New Hampshire. Subsec. (b)(4). Pub. L. 98–484, § 5(c), authorized appro- Pub. L. 102–50 added unnumbered par. relating to priations for conducting study of the Horsepasture Niobrara River, Nebraska. River, North Carolina. § 1277 TITLE 16—CONSERVATION Page 1638

Subsec. (b)(5), (6). Pub. L. 98–484, § 5(c), redesignated Morris Dam as authorized for purposes of flood con- pars. (4) and (5) added by Pub. L. 96–487, § 604(b), as pars. trol.’’ (5) and (6), respectively. 1980—Subsec. (a)(76). Pub. L. 96–199, § 102(a), added par. § 1277. Land acquisition (76). Subsec. (a)(77) to (88). Pub. L. 96–487, § 604(a), added (a) Grant of authority to acquire; State and In- pars. (77) to (88). dian lands; use of appropriated funds; acqui- Subsec. (b)(3), (4). Pub. L. 96–199, § 102(b), substituted sition of tracts partially outside component ‘‘(76)’’ for ‘‘(75)’’. boundaries; disposition of lands Subsec. (b)(4), (5). Pub. L. 96–487, § 604(b), added second par. (4) and par. (5). See 1984 Amendment note above. (1) The Secretary of the Interior and the Sec- 1979—Subsec. (b)(3). Pub. L. 96–87, § 404(a), substituted retary of Agriculture are each authorized to ac- ‘‘paragraphs (59) through (75)’’ for ‘‘paragraphs (59) quire lands and interests in land within the au- through (72)’’. thorized boundaries of any component of the na- Subsec. (b)(4). Pub. L. 96–87, § 404(b), substituted ‘‘sub- tional wild and scenic rivers system designated paragraphs (59) through (75)’’ for ‘‘subparagraphs (59) through (74)’’. in section 1274 of this title, or hereafter des- 1978—Subsec. (a)(59) to (75). Pub. L. 95–625, §§ 721–734, ignated for inclusion in the system by Act of 1108, added pars. (59) to (75). Congress, which is administered by him, but he Subsec. (b)(3), (4). Pub. L. 95–625, §§ 735, 736, added par. shall not acquire fee title to an average of more (3), redesignated former par. (3) as (4), and increased ap- than 100 acres per mile on both sides of the propriations authorization for certain studies to river. Lands owned by a State may be acquired $4,060,000 from $2,175,000 and authorized necessary ap- only by donation or by exchange in accordance propriations for certain other river studies. with subsection (d) of this section. Lands owned 1976—Subsec. (a)(47). Pub. L. 94–486, § 701, struck out ‘‘including the tributaries and headwaters on national by an Indian tribe or a political subdivision of a forest lands’’ after ‘‘Colorado Highway 160’’. State may not be acquired without the consent Subsec. (a)(58). Pub. L. 94–486, § 401, added par. (58). of the appropriate governing body thereof as 1975—Subsec. (a)(28) to (56). Pub. L. 93–621, § 1(a), long as the Indian tribe or political subdivision added pars. (28) to (56). is following a plan for management and protec- Subsec. (a)(57). Pub. L. 94–199 added par. (57). tion of the lands which the Secretary finds pro- Subsecs. (b) to (d). Pub. L. 93–621, § 1(b), added subsec. tects the land and assures its use for purposes (b) and redesignated former subsecs. (b) and (c) as (c) consistent with this chapter. Money appro- and (d), respectively. 1974—Subsecs. (b) to (d). Pub. L. 93–279 redesignated priated for Federal purposes from the land and subsecs. (c) and (d) as (b) and (c), respectively. Former water conservation fund shall, without prejudice subsec. (b), relating to the study of rivers named in to the use of appropriations from other sources, subsec. (a) of this section for inclusion in the national be available to Federal departments and agen- wild and scenic river system and submission of reports cies for the acquisition of property for the pur- to the President and the Congress, was incorporated in poses of this chapter. section 1275(a) of this title. (2) When a tract of land lies partially within CHANGE OF NAME and partially outside the boundaries of a compo- nent of the National Wild and Scenic Rivers The Delaware and Lehigh Navigation Canal National Heritage Corridor was redesignated the Delaware and System, the appropriate Secretary may, with Lehigh National Heritage Corridor by Pub. L. 105–355, the consent of the landowners for the portion title IV, § 401, Nov. 6, 1998, 112 Stat. 3258. outside the boundaries, acquire the entire tract. The land or interest therein so acquired outside EFFECTIVE DATE OF 1984 AMENDMENT the boundaries shall not be counted against the Section 6 of Pub. L. 98–484 provided that: ‘‘The provi- average one-hundred-acre-per-mile fee title limi- sions of this Act [amending this section] shall take ef- tation of subsection (a)(1) of this section. The fect on the date of the enactment of this Act [Oct. 17, lands or interests therein outside such bound- 1984].’’ aries, shall be disposed of, consistent with exist- GENESEE RIVER PROTECTION ing authorities of law, by sale, lease, or ex- Pub. L. 101–175, Nov. 27, 1989, 103 Stat. 1294, provided change. that: (b) Curtailment of condemnation power in area ‘‘SECTION 1. SHORT TITLE. 50 per centum or more of which is owned in ‘‘This Act may be cited as the ‘Genesee River Protec- fee title by Federal or State government tion Act of 1989’. If 50 per centum or more of the entire acreage ‘‘SEC. 2. PROTECTION OF THE GENESEE RIVER. outside the ordinary high water mark on both ‘‘In order to protect for present and future genera- sides of the river within a federally adminis- tions the outstanding scenic, natural, recreational, sci- tered wild, scenic or recreational river area is entific, cultural, and ecological values of the Genesee owned in fee title by the United States, by the River within Letchworth Gorge State Park in the State of New York, and to assist in the protection and en- State or States within which it lies, or by politi- hancement of the Gorge’s archeological sites of sacred cal subdivisions of those States, neither Sec- significance to the Seneca Nation, historic areas, en- retary shall acquire fee title to any lands by dangered plant communities, and diverse recreation condemnation under authority of this chapter. uses, the protections afforded for rivers listed in sec- Nothing contained in this section, however, tion 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. shall preclude the use of condemnation when 1276(a)) for study for potential addition to the National necessary to clear title or to acquire scenic Wild and Scenic Rivers System shall apply to the seg- easements or such other easements as are rea- ment of the Genesee River beginning at the southern boundary of Letchworth Gorge State Park and extend- sonably necessary to give the public access to ing downstream to the Mt. Morris Dam, except that the the river and to permit its members to traverse protection so afforded shall not interfere with the Sec- the length of the area or of selected segments retary of the Army’s operation and management of Mt. thereof. Page 1639 TITLE 16—CONSERVATION § 1278

(c) Curtailment of condemnation power in urban (g) Retained right of use and occupancy; termi- areas covered by valid and satisfactory zon- nation; fair market value; ‘‘improved prop- ing ordinances erty’’ defined Neither the Secretary of the Interior nor the (1) Any owner or owners (hereinafter in this Secretary of Agriculture may acquire lands by subsection referred to as ‘‘owner’’) of improved condemnation, for the purpose of including such property on the date of its acquisition, may re- lands in any national wild, scenic or rec- tain for themselves and their successors or as- reational river area, if such lands are located signs a right of use and occupancy of the im- within any incorporated city, village, or bor- proved property for noncommercial residential ough which has in force and applicable to such purposes for a definite term not to exceed twen- lands a duly adopted, valid zoning ordinance ty-five years or, in lieu thereof, for a term end- that conforms with the purposes of this chapter. ing at the death of the owner, or the death of his In order to carry out the provisions of this sub- spouse, or the death of either or both of them. section the appropriate Secretary shall issue The owner shall elect the term to be reserved. guidelines, specifying standards for local zoning The appropriate Secretary shall pay to the ordinances, which are consistent with the pur- owner the fair market value of the property on the date of such acquisition less the fair market poses of this chapter. The standards specified in value on such date of the right retained by the such guidelines shall have the object of (A) pro- owner. hibiting new commercial or industrial uses (2) A right of use and occupancy retained pur- other than commercial or industrial uses which suant to this subsection shall be subject to ter- are consistent with the purposes of this chapter, mination whenever the appropriate Secretary is and (B) the protection of the bank lands by given reasonable cause to find that such use and means of acreage, frontage, and setback require- occupancy is being exercised in a manner which ments on development. conflicts with the purposes of this chapter. In the event of such a finding, the Secretary shall (d) Exchange of property tender to the holder of that right an amount The appropriate Secretary is authorized to ac- equal to the fair market value of that portion of cept title to non-Federal property within the au- the right which remains unexpired on the date thorized boundaries of any federally adminis- of termination. Such right of use or occupancy tered component of the national wild and scenic shall terminate by operation of law upon tender rivers system designated in section 1274 of this of the fair market price. title or hereafter designated for inclusion in the (3) The term ‘‘improved property’’, as used in system by Act of Congress and, in exchange this chapter, means a detached, one-family therefor, convey to the grantor any federally dwelling (hereinafter referred to as ‘‘dwelling’’), owned property which is under his jurisdiction the construction of which was begun before Jan- within the State in which the component lies uary 1, 1967, (except where a different date is and which he classifies as suitable for exchange specifically provided by law with respect to any or other disposal. The values of the properties so particular river) together with so much of the land on which the dwelling is situated, the said exchanged either shall be approximately equal land being in the same ownership as the dwell- or, if they are not approximately equal, shall be ing, as the appropriate Secretary shall designate equalized by the payment of cash to the grantor to be reasonably necessary for the enjoyment of or to the Secretary as the circumstances re- the dwelling for the sole purpose of noncommer- quire. cial residential use, together with any struc- tures accessory to the dwelling which are situ- (e) Transfer of jurisdiction over federally owned ated on the land so designated. property to appropriate Secretary (Pub. L. 90–542, § 6, Oct. 2, 1968, 82 Stat. 912; Pub. The head of any Federal department or agency L. 95–625, title VII, § 763(b), Nov. 10, 1978, 92 Stat. having administrative jurisdiction over any 3533; Pub. L. 99–590, title V, § 504, Oct. 30, 1986, 100 lands or interests in land within the authorized Stat. 3336.) boundaries of any federally administered compo- nent of the national wild and scenic rivers sys- AMENDMENTS tem designated in section 1274 of this title or 1986—Subsec. (a). Pub. L. 99–590, § 504(b), (c), des- hereafter designated for inclusion in the system ignated existing provisions as par. (1), inserted provi- by Act of Congress is authorized to transfer to sions relating to acquisition of lands by exchange in ac- the appropriate secretary jurisdiction over such cordance with subsec. (d) of this section, and added par. (2). lands for administration in accordance with the Subsec. (b). Pub. L. 99–590, § 504(d), inserted require- provisions of this chapter. Lands acquired by or ment that acreage be outside ordinary high water mark transferred to the Secretary of Agriculture for on both sides of the river, and inserted ‘‘in fee title’’ the purposes of this chapter within or adjacent after ‘‘owned’’. to a national forest shall upon such acquisition Subsec. (e). Pub. L. 99–590, § 504(a), substituted ‘‘Con- or transfer become national forest lands. gress is’’ for ‘‘Congress in’’. 1978—Subsec. (g)(3). Pub. L. 95–625 inserted ‘‘(except where a different date is specifically provided by law (f) Acceptance of donated land, funds, and other with respect to any particular river)’’. property § 1278. Restrictions on water resources projects The appropriate Secretary is authorized to ac- cept donations of lands and interests in land, (a) Construction projects licensed by Federal En- funds, and other property for use in connection ergy Regulatory Commission with his administration of the national wild and The Federal Energy Regulatory Commission scenic rivers system. shall not license the construction of any dam, § 1278 TITLE 16—CONSERVATION Page 1640 water conduit, reservoir, powerhouse, trans- ignating any river for potential addition to mission line, or other project works under the the national wild and scenic rivers system, Federal Power Act (41 Stat. 1063), as amended (16 whichever is later, unless, prior to the expira- U.S.C. 791a et seq.), on or directly affecting any tion of the relevant period, the Secretary of river which is designated in section 1274 of this the Interior and, where national forest lands title as a component of the national wild and are involved, the Secretary of Agriculture, on scenic rivers system or which is hereafter des- the basis of study, determine that such river ignated for inclusion in that system, and no de- should not be included in the national wild partment or agency of the United States shall and scenic rivers system and notify the Com- assist by loan, grant, license, or otherwise in the mittee on Energy and Natural Resources of construction of any water resources project that the Senate and the Committee on Natural Re- would have a direct and adverse effect on the sources of the House of Representatives, in values for which such river was established, as writing, including a copy of the study upon determined by the Secretary charged with its which the determination was made, at least administration. Nothing contained in the fore- one hundred and eighty days while Congress is going sentence, however, shall preclude licens- in session prior to publishing notice to that ef- ing of, or assistance to, developments below or fect in the Federal Register: Provided, That if above a wild, scenic or recreational river area or any Act designating any river or rivers for po- on any stream tributary thereto which will not tential addition to the national wild and sce- invade the area or unreasonably diminish the nic rivers system provides a period for the study or studies which exceeds such three scenic, recreational, and fish and wildlife values complete fiscal year period the period pro- present in the area on the date of designation of vided for in such Act shall be substituted for a river as a component of the National Wild and the three complete fiscal year period in the Scenic Rivers System. No department or agency provisions of this clause (i); and of the United States shall recommend authoriza- (ii) during such interim period from the date tion of any water resources project that would a report is due and the time a report is actu- have a direct and adverse effect on the values ally submitted to the Congress; and for which such river was established, as deter- (iii) during such additional period thereafter mined by the Secretary charged with its admin- as, in the case of any river the report for istration, or request appropriations to begin which is submitted to the President and the construction of any such project, whether here- Congress, is necessary for congressional con- tofore or hereafter authorized, without advising sideration thereof or, in the case of any river the Secretary of the Interior or the Secretary of recommended to the Secretary of the Interior Agriculture, as the case may be, in writing of its for inclusion in the national wild and scenic intention so to do at least sixty days in advance, rivers system under section 1273(a)(ii) of this and without specifically reporting to the Con- title, is necessary for the Secretary’s consider- gress in writing at the time it makes its recom- ation thereof, which additional period, how- mendation or request in what respect construc- ever, shall not exceed three years in the first tion of such project would be in conflict with case and one year in the second. the purposes of this chapter and would affect the Nothing contained in the foregoing sentence, component and the values to be protected by it however, shall preclude licensing of, or assist- under this chapter. Any license heretofore or ance to, developments below or above a poten- hereafter issued by the Federal Energy Regu- tial wild, scenic or recreational river area or on latory Commission affecting the New River of any stream tributary thereto which will not in- North Carolina shall continue to be effective vade the area or diminish the scenic, rec- only for that portion of the river which is not reational, and fish and wildlife values present in included in the National Wild and Scenic Rivers the potential wild, scenic or recreational river System pursuant to section 1273 of this title and area on the date of designation of a river for no project or undertaking so licensed shall be study as provided for in section 1276 of this title. permitted to invade, inundate or otherwise ad- No department or agency of the United States versely affect such river segment. shall, during the periods hereinbefore specified, (b) Construction projects on rivers designated recommend authorization of any water re- for potential addition to system sources project on any such river or request ap- The Federal Energy Regulatory Commission propriations to begin construction of any such shall not license the construction of any dam, project, whether heretofore or hereafter author- water conduit, reservoir, powerhouse, trans- ized, without advising the Secretary of the Inte- mission line, or other project works under the rior and, where national forest lands are in- Federal Power Act, as amended [16 U.S.C. 791a et volved, the Secretary of Agriculture in writing seq.], on or directly affecting any river which is of its intention so to do at least sixty days in listed in section 1276(a) of this title, and no de- advance of doing so and without specifically re- partment or agency of the United States shall porting to the Congress in writing at the time it assist by loan, grant, license, or otherwise in the makes its recommendation or request in what construction of any water resources project that respect construction of such project would be in would have a direct and adverse effect on the conflict with the purposes of this chapter and values for which such river might be designated, would affect the component and the values to be as determined by the Secretary responsible for protected by it under this chapter. its study or approval— (c) Activities in progress affecting river of sys- (i) during the ten-year period following Oc- tem; notice to Secretary tober 2, 1968, or for a three complete fiscal The Federal Energy Regulatory Commission year period following any Act of Congress des- and all other Federal agencies shall, promptly Page 1641 TITLE 16—CONSERVATION § 1279 upon enactment of this chapter, inform the Sec- should not be so included and notified the Committees retary of the Interior and, where national forest on Interior and Insular Affairs, before publication in lands are involved, the Secretary of Agriculture, the Federal Register, for provisions that such projects of any proceedings, studies, or other activities may not be licensed or assisted before Oct. 2, 1973, un- less, prior to that period, the Secretary of the Interior within their jurisdiction which are now in or the Secretary of Agriculture, as the case may be, progress and which affect or may affect any of concluded that such river should not be so included and the rivers specified in section 1276(a) of this published notice to that effect in the Federal Register. title. They shall likewise inform him of any Subsec. (b)(ii). Pub. L. 93–279, § 1(b)(4), substituted such proceedings, studies, or other activities ‘‘the report for which is submitted to the President and which are hereafter commenced or resumed be- the Congress, is necessary’’ for ‘‘which is recommended fore they are commenced or resumed. to the President and the Congress for inclusion in the national wild and scenic rivers system, is necessary’’. (d) Grants under Land and Water Conservation Fund Act of 1965 TRANSFER OF FUNCTIONS Nothing in this section with respect to the Enforcement functions of Secretary or other official making of a loan or grant shall apply to grants in Department of the Interior related to compliance with system activities requiring coordination and ap- made under the Land and Water Conservation proval under this chapter and such functions of Sec- Fund Act of 1965 [16 U.S.C. 460l–4 et seq.]. retary or other official in Department of Agriculture, (Pub. L. 90–542, § 7, Oct. 2, 1968, 82 Stat. 913; Pub. insofar as they involve lands and programs under juris- L. 93–279, § 1(b)(3), (4), May 10, 1974, 88 Stat. 123; diction of that Department, related to compliance with this chapter with respect to pre-construction, construc- Pub. L. 93–621, § 1(c), Jan. 3, 1975, 88 Stat. 2096; tion, and initial operation of transportation system for Pub. L. 94–407, § 1(2), Sept. 11, 1976, 90 Stat. 1238; Canadian and Alaskan natural gas transferred to Fed- Pub. L. 95–91, title IV, § 402(a)(1)(A), Aug. 4, 1977, eral Inspector, Office of Federal Inspector for Alaska 91 Stat. 583; Pub. L. 99–590, title V, § 505, Oct. 30, Natural Gas Transportation System, until first anni- 1986, 100 Stat. 3336; Pub. L. 103–437, § 6(a)(7), Nov. versary of date of initial operation of Alaska Natural 2, 1994, 108 Stat. 4583.) Gas Transportation System, see Reorg. Plan No. 1 of 1979, §§ 102(e), (f), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, REFERENCES IN TEXT 1376, effective July 1, 1979, set out in the Appendix to The Federal Power Act, referred to in subsecs. (a) and Title 5, Government Organization and Employees. Of- (b), is act June 10, 1920, ch. 285, 41 Stat. 1063, as amend- fice of Federal Inspector for the Alaska Natural Gas ed, which is classified generally to chapter 12 (§ 791a et Transportation System abolished and functions and au- seq.) of this title. For complete classification of this thority vested in Inspector transferred to Secretary of Act to the Code, see section 791a of this title and Energy by section 3012(b) of Pub. L. 102–486, set out as Tables. an Abolition of Office of Federal Inspector note under The Land and Water Conservation Fund Act of 1965, section 719e of Title 15, Commerce and Trade. Func- referred to in subsec. (d), is Pub. L. 88–578, Sept. 3, 1964, tions and authority vested in Secretary of Energy sub- 78 Stat. 897, as amended, which is classified generally sequently transferred to Federal Coordinator for Alas- to part B (§ 460l–4 et seq.) of subchapter LXIX of chapter ka Natural Gas Transportation Projects by section 1 of this title. For complete classification of this Act to 720d(f) of Title 15. the Code, see Short Title note set out under section ‘‘Federal Energy Regulatory Commission’’ sub- 460l–4 of this title and Tables. stituted for ‘‘Federal Power Commission’’ in subsecs. (a), (b), and (c) pursuant to Pub. L. 95–91, § 402(a)(1)(A), AMENDMENTS which is classified to section 7172(a)(1)(A) of Title 42, 1994—Subsec. (b)(i). Pub. L. 103–437 substituted ‘‘Com- The Public Health and Welfare. Federal Power Commission terminated and its func- mittee on Energy and Natural Resources of the Senate tions with regard to licenses and permits for dams, res- and the Committee on Natural Resources of the House ervoirs, or other works for development and improve- of Representatives’’ for ‘‘Committees on Interior and ment of navigation and for development and utilization Insular Affairs of the United States Congress’’. of power across, along, from, or in navigable waters 1986—Subsec. (a). Pub. L. 99–590, § 505(a), substituted under part I of Federal Power Act (16 U.S.C. 792 et seq.) provisions relating to values present in the area on the transferred to Federal Energy Regulatory Commission date of designation of a river as a component of the by sections 7172(a)(1)(A) and 7293 of Title 42. System, for provisions relating to values present in the area on Oct. 2, 1968. § 1279. Withdrawal of public lands from entry, Subsec. (b). Pub. L. 99–590, § 505(b), added cl. (ii), re- sale, or other disposition under public land designated former cl. (ii) as (iii), and substituted provi- sions relating to values present in the area on the date laws of designation of a river for study pursuant to section (a) Lands within authorized boundaries of com- 1276 of this title for provisions relating to values ponents of system present in the area on the date of approval of this chap- ter. All public lands within the authorized bound- 1976—Subsec. (a). Pub. L. 94–407 inserted provision re- aries of any component of the national wild and lating to licenses issued affecting the New River of scenic rivers system which is designated in sec- North Carolina. tion 1274 of this title or which is designated 1975—Subsec. (b)(i). Pub. L. 93–621 inserted proviso after October 2, 1968, for inclusion in that sys- that if any Act provides a time period for study in ex- tem are hereby withdrawn from entry, sale, or cess of the three fiscal year period, that period shall be other disposition under the public land laws of substituted for the three complete fiscal year period provision of cl. (i). the United States. This subsection shall not be 1974—Subsec. (b)(i). Pub. L. 93–279, § 1(b)(3), sub- construed to limit the authorities granted in stituted provisions that construction projects may not section 1277(d) or section 1285a of this title. be licensed or assisted before Oct. 2, 1978, or for a three (b) Lands constituting bed or bank of river; year period following inclusion of a river in the list of lands within bank area rivers for potential addition to the national wild and scenic river system, unless, prior to that period, the All public lands which constitute the bed or Secretary of the Interior or the Secretary of Agri- bank, or are within one-quarter mile of the culture, as the case may be, determined that such river bank, of any river which is listed in section § 1280 TITLE 16—CONSERVATION Page 1642

1276(a) of this title are hereby withdrawn from (ii) subject to valid existing rights, the per- entry, sale, or other disposition under the public fection of, or issuance of a patent to, any min- land laws of the United States for the periods ing claim affecting lands within the system specified in section 1278(b) of this title. Notwith- shall confer or convey a right or title only to standing the foregoing provisions of this sub- the mineral deposits and such rights only to section or any other provision of this chapter, the use of the surface and the surface re- subject only to valid existing rights, including sources as are reasonably required to carrying valid Native selection rights under the Alaska on prospecting or mining operations and are Native Claims Settlement Act [43 U.S.C. 1601 et consistent with such regulations as may be seq.], all public lands which constitute the bed prescribed by the Secretary of the Interior or, or bank, or are within an area extending two in the case of national forest lands, by the miles from the bank of the river channel on both Secretary of Agriculture; and sides of the river segments referred to in para- (iii) subject to valid existing rights, the min- graphs (77) through (88) of section 1276(a) of this erals in Federal lands which are part of the title are hereby withdrawn from entry, sale, system and constitute the bed or bank or are State selection or other disposition under the situated within one-quarter mile of the bank public land laws of the United States for the pe- of any river designated a wild river under this riods specified in section 1278(b) of this title. chapter or any subsequent Act are hereby withdrawn from all forms of appropriation (Pub. L. 90–542, § 8, Oct. 2, 1968, 82 Stat. 915; Pub. under the mining laws and from operation of L. 96–487, title VI, § 606(c), Dec. 2, 1980, 94 Stat. the mineral leasing laws including, in both 2417; Pub. L. 99–590, title V, § 506, Oct. 30, 1986, 100 cases, amendments thereto. Stat. 3336.) Regulations issued pursuant to paragraphs (i) REFERENCES IN TEXT and (ii) of this subsection shall, among other The public land laws of the United States, referred to things, provide safeguards against pollution of in text, are classified generally to Title 43, Public the river involved and unnecessary impairment Lands. of the scenery within the component in ques- The Alaska Native Claims Settlement Act, referred tion. to in subsec. (b), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat. 688, as amended, which is classified generally to chap- (b) Withdrawal from appropriation of minerals ter 33 (§ 1601 et seq.) of Title 43. For complete classifica- in Federal river beds or bank areas; pros- tion of this Act to the Code, see Short Title note set pecting, leases, licenses, and permits out under section 1601 of Title 43 and Tables. The minerals in any Federal lands which con- AMENDMENTS stitute the bed or bank or are situated within 1986—Subsec. (a). Pub. L. 99–590 inserted provisions one-quarter mile of the bank of any river which relating to construction of subsec. (a) with respect to is listed in section 1276(a) of this title are hereby authorities granted in section 1277(d) or 1285a of this withdrawn from all forms of appropriation under title. the mining laws during the periods specified in 1980—Subsec. (b). Pub. L. 96–487 inserted provision section 1278(b) of this title. Nothing contained in withdrawing, subject to valid existing rights, all public this subsection shall be construed to forbid pros- lands which constitute the bed or bank, or are within pecting or the issuance of leases, licenses, and an area extending two miles from the bank of the river permits under the mineral leasing laws subject channel on both sides of the river segments referred to in section 1276(a)(77) through (88) of this title, from to such conditions as the Secretary of the Inte- entry, sale, State selection or other disposition under rior and, in the case of national forest lands, the the public land laws for periods specified in section Secretary of Agriculture find appropriate to 1278(b) of this title. safeguard the area in the event it is subse- quently included in the system. Notwithstand- § 1280. Federal mining and mineral leasing laws ing the foregoing provisions of this subsection (a) Applicability to components of system or any other provision of this chapter, all public lands which constitute the bed or bank, or are Nothing in this chapter shall affect the appli- within an area extending two miles from the cability of the United States mining and min- bank of the river channel on both sides of the eral leasing laws within components of the na- river segments referred to in paragraphs (77) tional wild and scenic rivers system except through (88) of section 1276(a) of this title are that— hereby withdrawn subject to valid existing (i) all prospecting, mining operations, and rights, from all forms of appropriation under the other activities on mining claims which, in mining laws and from operation of the mineral the case of a component of the system des- leasing laws including, in both cases, amend- ignated in section 1274 of this title, have not ments thereto, during the periods specified in heretofore been perfected or which, in the case section 1278(b) of this title. of a component hereafter designated pursuant to this chapter or any other Act of Congress, (Pub. L. 90–542, § 9, Oct. 2, 1968, 82 Stat. 915; Pub. are not perfected before its inclusion in the L. 96–487, title VI, § 606(b), Dec. 2, 1980, 94 Stat. system and all mining operations and other 2416; Pub. L. 99–590, title V, § 507, Oct. 30, 1986, 100 activities under a mineral lease, license, or Stat. 3336.) permit issued or renewed after inclusion of a AMENDMENTS component in the system shall be subject to 1986—Subsec. (b). Pub. L. 99–590 substituted ‘‘issuance such regulations as the Secretary of the Inte- of leases’’ for ‘‘issuance or leases’’. rior or, in the case of national forest lands, the 1980—Subsec. (b). Pub. L. 96–487 inserted provision Secretary of Agriculture may prescribe to ef- withdrawing, subject to valid existing rights, all public fectuate the purposes of this chapter; lands which constitute the bed or bank, or are within Page 1643 TITLE 16—CONSERVATION § 1282 an area extending two miles from the bank of the river (e) Cooperative agreements with State and local channel or both sides of the river segments referred to governments in section 1276(a)(77) through (88) of this title, from all forms of appropriations under the mining laws and op- The Federal agency charged with the adminis- eration of the mineral leasing laws during the periods tration of any component of the national wild specified in section 1278(b) of this title. and scenic rivers system may enter into written cooperative agreements with the Governor of a § 1281. Administration State, the head of any State agency, or the ap- (a) Public use and enjoyment of components; propriate official of a political subdivision of a protection of features; management plans State for State or local governmental participa- Each component of the national wild and sce- tion in the administration of the component. nic rivers system shall be administered in such The States and their political subdivisions shall manner as to protect and enhance the values be encouraged to cooperate in the planning and which caused it to be included in said system administration of components of the system without, insofar as is consistent therewith, lim- which include or adjoin State- or county-owned iting other uses that do not substantially inter- lands. fere with public use and enjoyment of these val- (Pub. L. 90–542, § 10, Oct. 2, 1968, 82 Stat. 916.) ues. In such administration primary emphasis shall be given to protecting its esthetic, scenic, REFERENCES IN TEXT historic, archeologic, and scientific features. The Wilderness Act, referred to in subsec. (a), is Pub. Management plans for any such component may L. 88–577, Sept. 3, 1964, 78 Stat. 890, as amended, which establish varying degrees of intensity for its is classified generally to chapter 23 (§ 1131 et seq.) of protection and development, based on the spe- this title. For complete classification of this Act to the cial attributes of the area. Code, see Short Title note set out under section 1131 of this title and Tables. (b) Wilderness areas The Acts under which the national park system and Any portion of a component of the national the national wildlife system are administered, referred wild and scenic rivers system that is within the to in subsec. (c), are classified generally to this title. national wilderness preservation system, as es- CODIFICATION tablished by or pursuant to the Wilderness Act [16 U.S.C. 1131 et seq.], shall be subject to the The first reference to the Wilderness Act in subsec. provisions of both the Wilderness Act and this (b) was in the original a reference to the Act of Septem- chapter with respect to preservation of such ber 3, 1964 (78 Stat. 890). river and its immediate environment, and in TRANSFER OF FUNCTIONS case of conflict between the provisions of the For transfer of certain enforcement functions of Sec- Wilderness Act and this chapter the more re- retary or other official in Department of the Interior strictive provisions shall apply. and Secretary or other official in Department of Agri- (c) Areas administered by National Park Service culture under this chapter to Federal Inspector, Office and Fish and Wildlife Service of Federal Inspector for Alaska Natural Gas Transpor- tation System, and subsequent transfer to Secretary of Any component of the national wild and sce- Energy, then to Federal Coordinator for Alaska Natu- nic rivers system that is administered by the ral Gas Transportation Projects, see note set out under Secretary of the Interior through the National section 1278 of this title. Park Service shall become a part of the national park system, and any such component that is MANAGEMENT OF SEGMENT OF SALMON RIVER DES- IGNATED AS COMPONENT OF WILD AND SCENIC RIVER administered by the Secretary through the Fish SYSTEM LOCATED WITHIN FRANK CHURCH—RIVER OF and Wildlife Service shall become a part of the NO RETURN WILDERNESS OR GOSPEL-HUMP WILDER- national wildlife refuge system. The lands in- NESS volved shall be subject to the provisions of this Pub. L. 96–312, § 9(b), July 23, 1980, 94 Stat. 953, as chapter and the Acts under which the national amended Pub. L. 98–231, § 1, Mar. 14, 1984, 98 Stat. 60, park system or national wildlife system, as the provided: ‘‘That segment of the main Salmon River case may be, is administered, and in case of con- designated as a component of the Wild and Scenic Riv- flict between the provisions of this chapter and ers System by this Act [see 16 U.S.C. 1274(a)(24)], which such Acts, the more restrictive provisions shall lies within the Frank Church—River of No Return Wil- apply. The Secretary of the Interior, in his ad- derness or the Gospel-Hump Wilderness designated by ministration of any component of the national Public Law 95–237 [Pub. L. 95–237, § 4, Feb. 24, 1978, 92 wild and scenic rivers system, may utilize such Stat. 43], shall be managed under the provisions of the Wild and Scenic Rivers Act, as amended [16 U.S.C. 1271 general statutory authorities relating to areas et seq], and the regulations promulgated pursuant of the national park system and such general thereto, notwithstanding section 10(b) of the Wild and statutory authorities otherwise available to him Scenic Rivers Act [16 U.S.C. 1281(b)] or any provisions for recreation and preservation purposes and for of the Wilderness Act [16 U.S.C. 1131 et seq.] to the con- the conservation and management of natural re- trary.’’ sources as he deems appropriate to carry out the purposes of this chapter. § 1282. Assistance to State and local projects (d) Statutory authorities relating to national for- (a) Assistance of Secretary of the Interior ests The Secretary of the Interior shall encourage The Secretary of Agriculture, in his adminis- and assist the States to consider, in formulating tration of any component of the national wild and carrying out their comprehensive statewide and scenic rivers system area, may utilize the outdoor recreation plans and proposals for fi- general statutory authorities relating to the na- nancing assistance for State and local projects tional forests in such manner as he deems appro- submitted pursuant to the Land and Water Con- priate to carry out the purposes of this chapter. servation Fund Act of 1965 (78 Stat. 897) [16 § 1283 TITLE 16—CONSERVATION Page 1644

U.S.C. 460l–4 et seq.], needs and opportunities for tion 558a et seq. of this title. For complete classifica- establishing State and local wild, scenic and rec- tion of this Act to the Code, see Short Title note set reational river areas. out under section 558a of this title and Tables. (b) Assistance of Secretaries of the Interior, Agri- AMENDMENTS culture, or other Federal agency heads; use 1986—Subsec. (a). Pub. L. 99–590 struck out provisions of Federal facilities, equipment, etc.; condi- relating to provision of technical assistance and advice tions on permits or other authorizations to and cooperation with States, etc., in establishment of areas. (1) The Secretary of the Interior, the Sec- Subsec. (b). Pub. L. 99–590 amended subsec. (b) gener- retary of Agriculture, or the head of any other ally. Prior to amendment, subsec. (b) read as follows: Federal agency, shall assist, advise, and cooper- ‘‘The Secretaries of Agriculture and of Health and ate with States or their political subdivisions, Human Services shall likewise, in accordance with the landowners, private organizations, or individ- authority vested in them assist, advise, and cooperate uals to plan, protect, and manage river re- with State and local agencies and private interests sources. Such assistance, advice, and coopera- with respect to establishing such wild, scenic and rec- tion may be through written agreements or reational river areas.’’ otherwise. This authority applies within or out- § 1283. Management policies side a federally administered area and applies to rivers which are components of the National (a) Action of Secretaries and heads of agencies; Wild and Scenic Rivers System and to other riv- cooperative agreements ers. Any agreement under this subsection may The Secretary of the Interior, the Secretary of include provisions for limited financial or other Agriculture, and the head of any other Federal assistance to encourage participation in the ac- department or agency having jurisdiction over quisition, protection, and management of river any lands which include, border upon, or are ad- resources. jacent to, any river included within the Na- (2) Wherever appropriate in furtherance of this tional Wild and Scenic Rivers System or under chapter, the Secretary of Agriculture and the consideration for such inclusion, in accordance Secretary of the Interior are authorized and en- with section 1273(a)(ii), 1274(a), or 1276(a) of this couraged to utilize the following: title, shall take such action respecting manage- (A) For activities on federally owned land, ment policies, regulations, contracts, plans, af- the Volunteers in the Parks Act of 1969 [16 fecting such lands, following November 10, 1978, U.S.C. 18g et seq.] and the Volunteers in the as may be necessary to protect such rivers in ac- Forest Act of 1972 (16 U.S.C. 558a–558d). cordance with the purposes of this chapter. Such (B) For activities on all other lands, section Secretary or other department or agency head 6 of the Land and Water Conservation Fund shall, where appropriate, enter into written co- Act of 1965 [16 U.S.C. 460l–8] (relating to the de- operative agreements with the appropriate velopment of statewide comprehensive out- State or local official for the planning, adminis- door recreation plans). tration, and management of Federal lands which (3) For purposes of this subsection, the appro- are within the boundaries of any rivers for priate Secretary or the head of any Federal which approval has been granted under section agency may utilize and make available Federal 1273(a)(ii) of this title. Particular attention shall facilities, equipment, tools and technical assist- be given to scheduled timber harvesting, road ance to volunteers and volunteer organizations, construction, and similar activities which might subject to such limitations and restrictions as be contrary to the purposes of this chapter. the appropriate Secretary or the head of any (b) Existing rights, privileges, and contracts af- Federal agency deems necessary or desirable. fecting Federal lands (4) No permit or other authorization provided Nothing in this section shall be construed to for under provision of any other Federal law abrogate any existing rights, privileges, or con- shall be conditioned on the existence of any tracts affecting Federal lands held by any pri- agreement provided for in this section. vate party without the consent of said party. (Pub. L. 90–542, § 11, Oct. 2, 1968, 82 Stat. 916; Pub. (c) Water pollution L. 99–590, title V, § 508, Oct. 30, 1986, 100 Stat. The head of any agency administering a com- 3337.) ponent of the national wild and scenic rivers REFERENCES IN TEXT system shall cooperate with the Administrator, Environmental Protection Agency and with the The Land and Water Conservation Fund Act of 1965, referred to in subsec. (a), is Pub. L. 88–578, Sept. 3, 1964, appropriate State water pollution control agen- 78 Stat. 897, which is classified generally to part B cies for the purpose of eliminating or diminish- (§ 460l–4 et seq.) of subchapter LXIX of chapter 1 of this ing the pollution of waters of the river. title. For complete classification of this Act to the (Pub. L. 90–542, § 12, Oct. 2, 1968, 82 Stat. 917; Pub. Code, see Short Title note set out under section 460l–4 of this title and Tables. L. 95–625, title VII, § 762, Nov. 10, 1978, 92 Stat. The Volunteers in the Parks Act of 1969, referred to 3533; Pub. L. 99–590, title V, § 509, Oct. 30, 1986, 100 in subsec. (b)(2)(A), is Pub. L. 91–357, July 29, 1970, 84 Stat. 3337.) Stat. 472, which is classified generally to subchapter II AMENDMENTS (§ 18g et seq.) of chapter 1 of this title. For complete classification of this Act to the Code, see Short Title 1986—Subsec. (c). Pub. L. 99–590 substituted ‘‘Admin- note set out under section 18g of this title and Tables. istrator, Environmental Protection Agency’’ for ‘‘Sec- The Volunteers in the Forest Act of 1972, referred to retary of the Interior’’. in subsec. (b)(2)(A), probably means the Volunteers in 1978—Subsec. (a). Pub. L. 95–625 substituted provision the National Forests Act of 1972, Pub. L. 92–300, May 18, for action to be taken by Secretaries and heads of agen- 1972, 86 Stat. 147, which is classified generally to sec- cies for prior provision for review by such officials, Page 1645 TITLE 16—CONSERVATION § 1285b made provision applicable to rivers included within the modify, or be in conflict with any interstate System, included references to rivers covered in sec- compact made by any States which contain any tions 1273(a)(ii) and 1274(a) of this title, and required co- portion of the national wild and scenic rivers operative agreements with appropriate State or local officials for planning, administration, and management system. of Federal lands within boundaries of rivers approved (f) Rights of access to streams under section 1273(a)(ii) of this title. Nothing in this chapter shall affect existing TRANSFER OF FUNCTIONS rights of any State, including the right of ac- For transfer of certain enforcement functions of Sec- cess, with respect to the beds of navigable retary or other official in Department of the Interior streams, tributaries, or rivers (or segments and Secretary or other official in Department of Agri- thereof) located in a national wild, scenic or rec- culture under this chapter to Federal Inspector, Office reational river area. of Federal Inspector for Alaska Natural Gas Transpor- tation System, and subsequent transfer to Secretary of (g) Easements and rights-of-way Energy, then to Federal Coordinator for Alaska Natu- The Secretary of the Interior or the Secretary ral Gas Transportation Projects, see note set out under of Agriculture, as the case may be, may grant section 1278 of this title. easements and rights-of-way upon, over, under, § 1284. Existing State jurisdiction and respon- across, or through any component of the na- sibilities tional wild and scenic rivers system in accord- ance with the laws applicable to the national (a) Fish and wildlife park system and the national forest system, re- Nothing in this chapter shall affect the juris- spectively: Provided, That any conditions prece- diction or responsibilities of the States with re- dent to granting such easements and rights-of- spect to fish and wildlife. Hunting and fishing way shall be related to the policy and purpose of shall be permitted on lands and waters adminis- this chapter. tered as parts of the system under applicable State and Federal laws and regulations unless, (Pub. L. 90–542, § 13, Oct. 2, 1968, 82 Stat. 917.) in the case of hunting, those lands or waters are within a national park or monument. The ad- § 1285. Claim and allowance of charitable deduc- ministering Secretary may, however, designate tion for contribution or gift of easement zones where, and establish periods when, no The claim and allowance of the value of an hunting is permitted for reasons of public safe- easement as a charitable contribution under sec- ty, administration, or public use and enjoyment tion 170 of title 26, or as a gift under section 2522 and shall issue appropriate regulations after of said title shall constitute an agreement by consultation with the wildlife agency of the the donor on behalf of himself, his heirs, and as- State or States affected. signs that, if the terms of the instrument creat- (b) Compensation for water rights ing the easement are violated, the donee or the The jurisdiction of the States and the United United States may acquire the servient estate States over waters of any stream included in a at its fair market value as of the time the ease- national wild, scenic or recreational river area ment was donated minus the value of the ease- shall be determined by established principles of ment claimed and allowed as a charitable con- law. Under the provisions of this chapter, any tribution or gift. taking by the United States of a water right (Pub. L. 90–542, § 14, Oct. 2, 1968, 82 Stat. 918.) which is vested under either State or Federal law at the time such river is included in the na- § 1285a. Lease of Federal lands tional wild and scenic rivers system shall entitle (a) Authority of Secretary; restrictive covenants the owner thereof to just compensation. Nothing in this chapter shall constitute an express or Where appropriate in the discretion of the Sec- implied claim or denial on the part of the Fed- retary, he may lease federally owned land (or eral Government as to exemption from State any interest therein) which is within the bound- water laws. aries of any component of the National Wild and (c) Reservation of waters for other purposes or Scenic Rivers System and which has been ac- in unnecessary quantities prohibited quired by the Secretary under this chapter. Such lease shall be subject to such restrictive Designation of any stream or portion thereof covenants as may be necessary to carry out the as a national wild, scenic or recreational river purposes of this chapter. area shall not be construed as a reservation of the waters of such streams for purposes other (b) Offer to prior owner than those specified in this chapter, or in quan- Any land to be leased by the Secretary under tities greater than necessary to accomplish this section shall be offered first for such lease these purposes. to the person who owned such land immediately (d) State jurisdiction over included streams before its acquisition by the United States. The jurisdiction of the States over waters of (Pub. L. 90–542, § 14A, as added Pub. L. 95–625, any stream included in a national wild, scenic or title VII, § 764, Nov. 10, 1978, 92 Stat. 3534.) recreational river area shall be unaffected by this chapter to the extent that such jurisdiction § 1285b. Establishment of boundaries for certain may be exercised without impairing the pur- component rivers in Alaska; withdrawal of poses of this chapter or its administration. minerals (e) Interstate compacts Notwithstanding any other provision to the Nothing contained in this chapter shall be contrary in sections 1274 and 1280 of this title, construed to alter, amend, repeal, interpret, with respect to components of the National Wild § 1286 TITLE 16—CONSERVATION Page 1646 and Scenic Rivers System in Alaska designated AMENDMENTS by paragraphs (38) through (50) of section 1274(a) 1986—Subsec. (c). Pub. L. 99–590 inserted provisions of this title — relating to function of appropriate Secretary with re- (1) the boundary of each such river shall in- spect to acquisition of fee title. clude an average of not more than six hundred 1974—Subsec. (c). Pub. L. 93–279 substituted ‘‘within and forty acres per mile on both sides of the the authorized boundaries of a component of the wild river. Such boundary shall not include any and scenic rivers system, for the purpose of protecting the natural qualities of a designated wild, scenic or rec- lands owned by the State or a political sub- reational river area’’ for ‘‘for the purposes of protecting division of the State nor shall such boundary the scenic view from the river’’. extend around any private lands adjoining the river in such manner as to surround or effec- § 1287. Authorization of appropriations tively surround such private lands; and There are hereby authorized to be appro- (2) the withdrawal made by paragraph (iii) of priated, including such sums as have heretofore section 1280(a) of this title shall apply to the been appropriated, the following amounts for minerals in Federal lands which constitute the land acquisition for each of the rivers (described bed or bank or are situated within one-half in section 1274(a) of this title): mile of the bank of any river designated a wild Clearwater, Middle Fork, Idaho, $2,909,800; river by the Alaska National Interest Lands Eleven Point, Missouri, $10,407,000; Conservation Act. Feather Middle Fork, California, $3,935,700; (Pub. L. 90–542, § 15, as added Pub. L. 96–487, title Rio Grande, New Mexico, $253,000; VI, § 606(a), Dec. 2, 1980, 94 Stat. 2416.) Rogue, Oregon, $15,147,000; St. Croix, Minnesota and Wisconsin, REFERENCES IN TEXT $21,769,000; The Alaska National Interest Lands Conservation Salmon Middle Fork, Idaho, $1,837,000; Act, referred to in par. (2), is Pub. L. 96–487, Dec. 2, 1980, Wolf, Wisconsin, $142,150. 94 Stat. 2371, as amended. For complete classification of this Act to the Code, see Short Title note set out under (Pub. L. 90–542, § 17, formerly § 16, Oct. 2, 1968, 82 section 3101 of this title and Tables. Stat. 918; Pub. L. 93–279, § 1(d), May 10, 1974, 88 Stat. 123; Pub. L. 94–273, § 2(11), Apr. 21, 1976, 90 § 1286. Definitions Stat. 375; Pub. L. 95–625, title VII, §§ 751–754, As used in this chapter, the term— 763(c), Nov. 10, 1978, 92 Stat. 3532, 3533; renum- (a) ‘‘River’’ means a flowing body of water or bered Pub. L. 96–487, title VI, § 606(a), Dec. 2, estuary or a section, portion, or tributary there- 1980, 94 Stat. 2416.) of, including rivers, streams, creeks, runs, kills, AMENDMENTS rills, and small lakes. 1978—Pub. L. 95–625, §§ 751–754, 763(c), increased appro- (b) ‘‘Free-flowing’’, as applied to any river or priations authorization for the following rivers, sub- section of a river, means existing or flowing in stituting for: natural condition without impoundment, diver- Eleven Point, $10,407,000 for $4,906,500; sion, straightening, rip-rapping, or other modi- Rogue, $15,147,000 for $12,447,200; fication of the waterway. The existence, how- Saint Croix, $21,769,000 for $11,768,550; and ever, of low dams, diversion works, and other Salmon, $1,837,000 for $1,237,100; and minor structures at the time any river is pro- struck out subsec. (a) designation and subsec. (b) which provided for expiration of authority to make author- posed for inclusion in the national wild and sce- ized appropriations on Sept. 30, 1979. nic rivers system shall not automatically bar its 1976—Subsec. (b). Pub. L. 94–273 substituted ‘‘Septem- consideration for such inclusion: Provided, That ber’’ for ‘‘June’’. this shall not be construed to authorize, intend, 1974—Pub. L. 93–279 added subsecs. (a) and (b). Former or encourage future construction of such struc- unlettered provisions authorizing appropriation of tures within components of the national wild amounts up to $17,000,000 for the acquisition of lands and scenic rivers system. and interests in land were struck out. (c) ‘‘Scenic easement’’ means the right to con- CHAPTER 29—WATER BANK PROGRAM FOR trol the use of land (including the air space WETLANDS PRESERVATION above such land) within the authorized bound- aries of a component of the wild and scenic riv- Sec. ers system, for the purpose of protecting the 1301. Congressional declaration of policy; author- ity of Secretary. natural qualities of a designated wild, scenic or 1302. Conservation agreements to effectuate water recreational river area, but such control shall bank program; duration and renewal; ad- not affect, without the owner’s consent, any reg- justment of payment rate for renewal pe- ular use exercised prior to the acquisition of the riod; ‘‘wetlands’’ defined; duration of owner- easement. For any designated wild and scenic ship or control of land as determining eligi- river, the appropriate Secretary shall treat the bility for agreements; protection of and acquisition of fee title with the reservation of compensation for tenants and share- regular existing uses to the owner as a scenic croppers; participation by owner or opera- tor in other Federal or State programs. easement for purposes of this chapter. Such an 1303. Terms of agreement; required provisions. acquisition shall not constitute fee title owner- 1304. Annual payment; adjustment. ship for purposes of section 1277(b) of this title. 1305. Renewal or extension of agreement; partici- (Pub. L. 90–542, § 16, formerly § 15, Oct. 2, 1968, 82 pation of subsequent owner or operator in program. Stat. 918; Pub. L. 93–279, § 1(c), May 10, 1974, 88 1306. Termination or modification of agreements. Stat. 123; renumbered Pub. L. 96–487, title VI, 1307. Utilization of services and facilities. § 606(a), Dec. 2, 1980, 94 Stat. 2416; Pub. L. 99–590, 1308. Advisory Board; appointment; functions; title V, § 510, Oct. 30, 1986, 100 Stat. 3337.) membership; reimbursement for expenses.

§ 1370 TITLE 33—NAVIGATION AND NAVIGABLE WATERS Page 492

(3) AWARD OF FEES.—In any judicial proceeding litical subdivision or interstate agency may not under this subsection, the court may award adopt or enforce any effluent limitation, or costs of litigation (including reasonable attor- other limitation, effluent standard, prohibition, ney and expert witness fees) to any prevailing or pretreatment standard, or standard of perform- substantially prevailing party whenever it de- ance which is less stringent than the effluent termines that such award is appropriate. limitation, or other limitation, effluent stand- (c) Additional evidence ard, prohibition, pretreatment standard, or standard of performance under this chapter; or In any judicial proceeding brought under sub- (2) be construed as impairing or in any manner section (b) of this section in which review is affecting any right or jurisdiction of the States sought of a determination under this chapter re- with respect to the waters (including boundary quired to be made on the record after notice and waters) of such States. opportunity for hearing, if any party applies to the court for leave to adduce additional evi- (June 30, 1948, ch. 758, title V, § 510, as added Pub. dence, and shows to the satisfaction of the court L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 893.) that such additional evidence is material and that there were reasonable grounds for the fail- § 1371. Authority under other laws and regula- ure to adduce such evidence in the proceeding tions before the Administrator, the court may order (a) Impairment of authority or functions of offi- such additional evidence (and evidence in rebut- cials and agencies; treaty provisions tal thereof) to be taken before the Adminis- This chapter shall not be construed as (1) lim- trator, in such manner and upon such terms and iting the authority or functions of any officer or conditions as the court may deem proper. The agency of the United States under any other law Administrator may modify his findings as to the or regulation not inconsistent with this chapter; facts, or make new findings, by reason of the ad- (2) affecting or impairing the authority of the ditional evidence so taken and he shall file such Secretary of the Army (A) to maintain naviga- modified or new findings, and his recommenda- tion or (B) under the Act of March 3, 1899, (30 tion, if any, for the modification or setting aside Stat. 1112); except that any permit issued under of his original determination, with the return of section 1344 of this title shall be conclusive as to such additional evidence. the effect on water quality of any discharge re- (June 30, 1948, ch. 758, title V, § 509, as added Pub. sulting from any activity subject to section 403 L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 891; amended of this title, or (3) affecting or impairing the Pub. L. 93–207, § 1(6), Dec. 28, 1973, 87 Stat. 906; provisions of any treaty of the United States. Pub. L. 100–4, title III, § 308(b), title IV, (b) Discharges of pollutants into navigable wa- § 406(d)(3), title V, § 505(a), (b), Feb. 4, 1987, 101 ters Stat. 39, 73, 75; Pub. L. 100–236, § 2, Jan. 8, 1988, Discharges of pollutants into the navigable 101 Stat. 1732.) waters subject to the Rivers and Harbors Act of AMENDMENTS 1910 (36 Stat. 593; 33 U.S.C. 421) and the Super- visory Harbors Act of 1888 (25 Stat. 209; 33 U.S.C. 1988—Subsec. (b)(3), (4). Pub. L. 100–236 redesignated par. (4) as (3) and struck out former par. (3) relating to 441–451b) shall be regulated pursuant to this venue, which provided for selection procedure in sub- chapter, and not subject to such Act of 1910 and par. (A), administrative provisions in subpar. (B), and the Act of 1888 except as to effect on navigation transfers in subpar. (C). and anchorage. 1987—Subsec. (b)(1). Pub. L. 100–4, §§ 308(b), 406(d)(3), (c) Action of the Administrator deemed major 505(a), substituted ‘‘transacts business which is directly Federal action; construction of the National affected by such action’’ for ‘‘transacts such business’’, ‘‘120’’ for ‘‘ninety’’, and ‘‘120th’’ for ‘‘ninetieth’’, sub- Environmental Policy Act of 1969 stituted ‘‘1316, or 1345 of this title’’ for ‘‘or 1316 of this (1) Except for the provision of Federal finan- title’’ in cl. (E), and added cl. (G). cial assistance for the purpose of assisting the Subsec. (b)(3), (4). Pub. L. 100–4, § 505(b), added pars. construction of publicly owned treatment works (3) and (4). as authorized by section 1281 of this title, and 1973—Subsec. (b)(1)(C). Pub. L. 93–207 substituted the issuance of a permit under section 1342 of ‘‘pretreatment’’ for ‘‘treatment’’. this title for the discharge of any pollutant by a EFFECTIVE DATE OF 1988 AMENDMENT new source as defined in section 1316 of this Amendment by Pub. L. 100–236 effective 180 days after title, no action of the Administrator taken pur- Jan. 8, 1988, see section 3 of Pub. L. 100–236, set out as suant to this chapter shall be deemed a major a note under section 2112 of Title 28, Judiciary and Ju- Federal action significantly affecting the qual- dicial Procedure. ity of the human environment within the mean- § 1370. State authority ing of the National Environmental Policy Act of 1969 (83 Stat. 852) [42 U.S.C. 4321 et seq.]; and Except as expressly provided in this chapter, (2) Nothing in the National Environmental nothing in this chapter shall (1) preclude or Policy Act of 1969 (83 Stat. 852) shall be deemed deny the right of any State or political subdivi- to— sion thereof or interstate agency to adopt or en- (A) authorize any Federal agency authorized force (A) any standard or limitation respecting to license or permit the conduct of any activ- discharges of pollutants, or (B) any requirement ity which may result in the discharge of a pol- respecting control or abatement of pollution; ex- lutant into the navigable waters to review any cept that if an effluent limitation, or other limi- effluent limitation or other requirement es- tation, effluent standard, prohibition, pre- tablished pursuant to this chapter or the ade- treatment standard, or standard of performance quacy of any certification under section 1341 is in effect under this chapter, such State or po- of this title; or § 230.7 40 CFR Ch. I (7–1–11 Edition)

anticipated that substantial numbers permit or section 208(b)(4)(B) and (C) of permit applications will be for Best Management Practices. However, minor, routine activities that have lit- a particular General permit may re- tle, if any, potential for significant quire appropriate reporting. degradation of the aquatic environ- ment. It generally is not intended or § 230.7 General permits. expected that extensive testing, eval- (a) Conditions for the issuance of Gen- uation or analysis will be needed to eral permits. A General permit for a cat- make findings of compliance in such egory of activities involving the dis- routine cases. Where the conditions for charge of dredged or fill material com- General permits are met, and where plies with the Guidelines if it meets numerous applications for similar ac- the applicable restrictions on the dis- tivities are likely, the use of General charge in § 230.10 and if the permitting permits will eliminate repetitive eval- authority determines that: uation and documentation for indi- (1) The activities in such category vidual discharges. are similar in nature and similar in (b) The Guidelines user, including the their impact upon water quality and agency or agencies responsible for im- the aquatic environment; plementing the Guidelines, must recog- nize the different levels of effort that (2) The activities in such category should be associated with varying de- will have only minimal adverse effects grees of impact and require or prepare when performed separately; and commensurate documentation. The (3) The activities in such category level of documentation should reflect will have only minimal cumulative ad- the significance and complexity of the verse effects on water quality and the discharge activity. aquatic environment. (c) An essential part of the evalua- (b) Evaluation process. To reach the tion process involves making deter- determinations required in paragraph minations as to the relevance of any (a) of this section, the permitting au- portion(s) of the Guidelines and con- thority shall set forth in writing an ducting further evaluation only as evaluation of the potential individual needed. However, where portions of the and cumulative impacts of the cat- Guidelines review procedure are ‘‘short egory of activities to be regulated form’’ evaluations, there still must be under the General permit. While some sufficient information (including con- of the information necessary for this sideration of both individual and cumu- evaluation can be obtained from poten- lative impacts) to support the decision tial permittees and others through the of whether to specify the site for dis- proposal of General permits for public posal of dredged or fill material and to review, the evaluation must be com- support the decision to curtail or ab- pleted before any General permit is breviate the evaluation process. The issued, and the results must be pub- presumption against the discharge in lished with the final permit. § 230.1 applies to this decision-making. (1) This evaluation shall be based (d) In the case of activities covered upon consideration of the prohibitions by General permits or section listed in § 230.10(b) and the factors list- 208(b)(4)(B) and (C) Best Management ed in § 230.10(c), and shall include docu- Practices, the analysis and documenta- mented information supporting each tion required by the Guidelines will be factual determination in § 230.11 of the performed at the time of General per- Guidelines (consideration of alter- mit issuance or section 208(b)(4)(B) and natives in § 230.10(a) are not directly (C) Best Management Practices pro- applicable to General permits); mulgation and will not be repeated (2) The evaluation shall include a when activities are conducted under a precise description of the activities to General permit or section 208(b)(4)(B) be permitted under the General permit, and (C) Best Management Practices explaining why they are sufficiently control. These Guidelines do not re- similar in nature and in environmental quire reporting or formal written com- impact to warrant regulation under a munication at the time individual ac- single General permit based on sub- tivities are initiated under a General parts C through F of the Guidelines.

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Allowable differences between activi- posed discharge which would have less ties which will be regulated under the adverse impact on the aquatic eco- same General permit shall be specified. system, so long as the alternative does Activities otherwise similar in nature not have other significant adverse en- may differ in environmental impact vironmental consequences. due to their location in or near eco- (1) For the purpose of this require- logically sensitive areas, areas with ment, practicable alternatives include, unique chemical or physical character- but are not limited to: istics, areas containing concentrations (i) Activities which do not involve a of toxic substances, or areas regulated discharge of dredged or fill material for specific human uses or by specific into the waters of the United States or land or water management plans (e.g., ocean waters; areas regulated under an approved (ii) Discharges of dredged or fill ma- Coastal Zone Management Plan). If terial at other locations in waters of there are specific geographic areas the United States or ocean waters; within the purview of a proposed Gen- (2) An alternative is practicable if it eral permit (called a draft General per- is available and capable of being done mit under a State 404 program), which after taking into consideration cost, are more appropriately regulated by in- existing technology, and logistics in dividual permit due to the consider- light of overall project purposes. If it is ations cited in this paragraph, they otherwise a practicable alternative, an shall be clearly delineated in the eval- area not presently owned by the appli- uation and excluded from the permit. cant which could reasonably be ob- In addition, the permitting authority may require an individual permit for tained, utilized, expanded or managed any proposed activity under a General in order to fulfill the basic purpose of permit where the nature or location of the proposed activity may be con- the activity makes an individual per- sidered. mit more appropriate. (3) Where the activity associated (3) To predict cumulative effects, the with a discharge which is proposed for evaluation shall include the number of a special aquatic site (as defined in individual discharge activities likely subpart E) does not require access or to be regulated under a General permit proximity to or siting within the spe- until its expiration, including repeti- cial aquatic site in question to fulfill tions of individual discharge activities its basic purpose (i.e., is not ‘‘water de- at a single location. pendent’’), practicable alternatives that do not involve special aquatic sites are presumed to be available, un- Subpart B—Compliance With the less clearly demonstrated otherwise. In Guidelines addition, where a discharge is proposed for a special aquatic site, all prac- § 230.10 Restrictions on discharge. ticable alternatives to the proposed NOTE: Because other laws may apply to discharge which do not involve a dis- particular discharges and because the Corps charge into a special aquatic site are of Engineers or State 404 agency may have presumed to have less adverse impact additional procedural and substantive re- quirements, a discharge complying with the on the aquatic ecosystem, unless clear- requirement of these Guidelines will not ly demonstrated otherwise. automatically receive a permit. (4) For actions subject to NEPA, Although all requirements in § 230.10 where the Corps of Engineers is the must be met, the compliance evalua- permitting agency, the analysis of al- tion procedures will vary to reflect the ternatives required for NEPA environ- seriousness of the potential for adverse mental documents, including supple- impacts on the aquatic ecosystems mental Corps NEPA documents, will in posed by specific dredged or fill mate- most cases provide the information for rial discharge activities. the evaluation of alternatives under (a) Except as provided under section these Guidelines. On occasion, these 404(b)(2), no discharge of dredged or fill NEPA documents may address a broad- material shall be permitted if there is er range of alternatives than required a practicable alternative to the pro- to be considered under this paragraph

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takes effect prior to final administra- (2) Monitoring waivers for certain tive disposition of a permit. For a per- guideline-listed pollutants. (i) The Direc- mit issued by EPA, an applicable re- tor may authorize a discharger subject quirement is a statutory or regulatory to technology-based effluent limita- requirement (including any interim tions guidelines and standards in an final regulation) which takes effect NPDES permit to forego sampling of a prior to the issuance of the permit. pollutant found at 40 CFR Subchapter Section 124.14 (reopening of comment N of this chapter if the discharger has period) provides a means for reopening demonstrated through sampling and EPA permit proceedings at the discre- other technical factors that the pollut- tion of the Director where new require- ant is not present in the discharge or is ments become effective during the per- present only at background levels from mitting process and are of sufficient intake water and without any increase magnitude to make additional pro- in the pollutant due to activities of the ceedings desirable. For State and EPA discharger. administered programs, an applicable (ii) This waiver is good only for the requirement is also any requirement term of the permit and is not available which takes effect prior to the modi- during the term of the first permit fication or revocation and reissuance of issued to a discharger. a permit, to the extent allowed in (iii) Any request for this waiver must § 122.62. be submitted when applying for a re- (2) New or reissued permits, and to issued permit or modification of a re- the extent allowed under § 122.62 modi- issued permit. The request must dem- fied or revoked and reissued permits, onstrate through sampling or other shall incorporate each of the applicable technical information, including infor- requirements referenced in §§ 122.44 and mation generated during an earlier per- 122.45. mit term that the pollutant is not (c) Incorporation. All permit condi- present in the discharge or is present tions shall be incorporated either ex- only at background levels from intake pressly or by reference. If incorporated water and without any increase in the by reference, a specific citation to the pollutant due to activities of the dis- applicable regulations or requirements charger. must be given in the permit. (iv) Any grant of the monitoring [48 FR 14153, Apr. 1, 1983, as amended at 65 waiver must be included in the permit FR 30908, May 15, 2000] as an express permit condition and the reasons supporting the grant must be § 122.44 Establishing limitations, documented in the permit’s fact sheet standards, and other permit condi- or statement of basis. tions (applicable to State NPDES (v) This provision does not supersede programs, see § 123.25). certification processes and require- In addition to the conditions estab- ments already established in existing lished under § 122.43(a), each NPDES effluent limitations guidelines and permit shall include conditions meet- standards. ing the following requirements when (b)(1) Other effluent limitations and applicable. standards under sections 301, 302, 303, (a)(1) Technology-based effluent limita- 307, 318 and 405 of CWA. If any applica- tions and standards based on: effluent ble toxic effluent standard or prohibi- limitations and standards promulgated tion (including any schedule of compli- under section 301 of the CWA, or new ance specified in such effluent standard source performance standards promul- or prohibition) is promulgated under gated under section 306 of CWA, on section 307(a) of CWA for a toxic pollut- case-by-case effluent limitations deter- ant and that standard or prohibition is mined under section 402(a)(1) of CWA, more stringent than any limitation on or a combination of the three, in ac- the pollutant in the permit, the Direc- cordance with § 125.3 of this chapter. tor shall institute proceedings under For new sources or new dischargers, these regulations to modify or revoke these technology based limitations and and reissue the permit to conform to standards are subject to the provisions the toxic effluent standard or prohibi- of § 122.29(d) (protection period). tion. See also § 122.41(a).

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(2) Standards for sewage sludge use or CWA, including State narrative cri- disposal under section 405(d) of the CWA teria for water quality. unless those standards have been in- (i) Limitations must control all pol- cluded in a permit issued under the ap- lutants or pollutant parameters (either propriate provisions of subtitle C of the conventional, nonconventional, or Solid Waste Disposal Act, Part C of toxic pollutants) which the Director Safe Drinking Water Act, the Marine determines are or may be discharged at Protection, Research, and Sanctuaries a level which will cause, have the rea- Act of 1972, or the Clean Air Act, or sonable potential to cause, or con- under State permit programs approved tribute to an excursion above any by the Administrator. When there are State water quality standard, includ- no applicable standards for sewage ing State narrative criteria for water sludge use or disposal, the permit may quality. include requirements developed on a (ii) When determining whether a dis- case-by-case basis to protect public charge causes, has the reasonable po- health and the environment from any tential to cause, or contributes to an adverse effects which may occur from in-stream excursion above a narrative toxic pollutants in sewage sludge. If or numeric criteria within a State any applicable standard for sewage water quality standard, the permitting sludge use or disposal is promulgated authority shall use procedures which under section 405(d) of the CWA and account for existing controls on point that standard is more stringent than and nonpoint sources of pollution, the any limitation on the pollutant or variability of the pollutant or pollut- practice in the permit, the Director ant parameter in the effluent, the sen- may initiate proceedings under these sitivity of the species to toxicity test- regulations to modify or revoke and re- ing (when evaluating whole effluent issue the permit to conform to the toxicity), and where appropriate, the standard for sewage sludge use or dis- dilution of the effluent in the receiving posal. water. (3) Requirements applicable to cool- (iii) When the permitting authority ing water intake structures under sec- determines, using the procedures in tion 316(b) of the CWA, in accordance with part 125, subparts I, J, and N of paragraph (d)(1)(ii) of this section, that this chapter. a discharge causes, has the reasonable (c) Reopener clause: For any permit potential to cause, or contributes to an issued to a treatment works treating in-stream excursion above the allow- domestic sewage (including ‘‘sludge- able ambient concentration of a State only facilities’’), the Director shall in- numeric criteria within a State water clude a reopener clause to incorporate quality standard for an individual pol- any applicable standard for sewage lutant, the permit must contain efflu- sludge use or disposal promulgated ent limits for that pollutant. under section 405(d) of the CWA. The (iv) When the permitting authority Director may promptly modify or re- determines, using the procedures in voke and reissue any permit containing paragraph (d)(1)(ii) of this section, that the reopener clause required by this a discharge causes, has the reasonable paragraph if the standard for sewage potential to cause, or contributes to an sludge use or disposal is more stringent in-stream excursion above the numeric than any requirements for sludge use criterion for whole effluent toxicity, or disposal in the permit, or controls a the permit must contain effluent lim- pollutant or practice not limited in the its for whole effluent toxicity. permit. (v) Except as provided in this sub- (d) Water quality standards and State paragraph, when the permitting au- requirements: any requirements in addi- thority determines, using the proce- tion to or more stringent than promul- dures in paragraph (d)(1)(ii) of this sec- gated effluent limitations guidelines or tion, toxicity testing data, or other in- standards under sections 301, 304, 306, formation, that a discharge causes, has 307, 318 and 405 of CWA necessary to: the reasonable potential to cause, or (1) Achieve water quality standards contributes to an in-stream excursion established under section 303 of the above a narrative criterion within an

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applicable State water quality stand- rameter will result in controls on the ard, the permit must contain effluent pollutant of concern which are suffi- limits for whole effluent toxicity. Lim- cient to attain and maintain applicable its on whole effluent toxicity are not water quality standards; necessary where the permitting au- (3) The permit requires all effluent thority demonstrates in the fact sheet and ambient monitoring necessary to or statement of basis of the NPDES show that during the term of the per- permit, using the procedures in para- mit the limit on the indicator param- graph (d)(1)(ii) of this section, that eter continues to attain and maintain chemical-specific limits for the efflu- applicable water quality standards; and ent are sufficient to attain and main- (4) The permit contains a reopener tain applicable numeric and narrative clause allowing the permitting author- State water quality standards. ity to modify or revoke and reissue the (vi) Where a State has not estab- permit if the limits on the indicator lished a water quality criterion for a parameter no longer attain and main- specific chemical pollutant that is tain applicable water quality stand- present in an effluent at a concentra- ards. tion that causes, has the reasonable po- (vii) When developing water quality- tential to cause, or contributes to an based effluent limits under this para- excursion above a narrative criterion graph the permitting authority shall within an applicable State water qual- ensure that: ity standard, the permitting authority (A) The level of water quality to be must establish effluent limits using achieved by limits on point sources es- one or more of the following options: tablished under this paragraph is de- (A) Establish effluent limits using a rived from, and complies with all appli- calculated numeric water quality cri- cable water quality standards; and terion for the pollutant which the per- (B) Effluent limits developed to pro- mitting authority demonstrates will tect a narrative water quality cri- attain and maintain applicable nar- terion, a numeric water quality cri- rative water quality criteria and will terion, or both, are consistent with the fully protect the designated use. Such assumptions and requirements of any a criterion may be derived using a pro- available wasteload allocation for the posed State criterion, or an explicit discharge prepared by the State and State policy or regulation interpreting approved by EPA pursuant to 40 CFR its narrative water quality criterion, 130.7. supplemented with other relevant in- (2) Attain or maintain a specified formation which may include: EPA’s water quality through water quality Water Quality Standards Handbook, related effluent limits established October 1983, risk assessment data, ex- under section 302 of CWA; posure data, information about the pol- (3) Conform to the conditions to a lutant from the Food and Drug Admin- State certification under section 401 of istration, and current EPA criteria the CWA that meets the requirements documents; or of § 124.53 when EPA is the permitting (B) Establish effluent limits on a authority. If a State certification is case-by-case basis, using EPA’s water stayed by a court of competent juris- quality criteria, published under sec- diction or an appropriate State board tion 304(a) of the CWA, supplemented or agency, EPA shall notify the State where necessary by other relevant in- that the Agency will deem certifi- formation; or cation waived unless a finally effective (C) Establish effluent limitations on State certification is received within an indicator parameter for the pollut- sixty days from the date of the notice. ant of concern, provided: If the State does not forward a finally (1) The permit identifies which pol- effective certification within the sixty lutants are intended to be controlled day period, EPA shall include condi- by the use of the effluent limitation; tions in the permit that may be nec- (2) The fact sheet required by § 124.56 essary to meet EPA’s obligation under sets forth the basis for the limit, in- section 301(b)(1)(C) of the CWA; cluding a finding that compliance with (4) Conform to applicable water qual- the effluent limit on the indicator pa- ity requirements under section 401(a)(2)

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of CWA when the discharge affects a (ii) Limitations on other pollutants State other than the certifying State; which, in the judgment of the Director, (5) Incorporate any more stringent will provide treatment of the pollut- limitations, treatment standards, or ants under paragraph (e)(1) of this sec- schedule of compliance requirements tion to the levels required by § 125.3(c). established under Federal or State law (f) Notification level. A ‘‘notification or regulations in accordance with sec- level’’ which exceeds the notification tion 301(b)(1)(C) of CWA; level of § 122.42(a)(1)(i), (ii) or (iii), upon (6) Ensure consistency with the re- a petition from the permittee or on the quirements of a Water Quality Manage- Director’s initiative. This new notifica- ment plan approved by EPA under sec- tion level may not exceed the level tion 208(b) of CWA; which can be achieved by the tech- (7) Incorporate section 403(c) criteria nology-based treatment requirements under part 125, subpart M, for ocean appropriate to the permittee under discharges; § 125.3(c) (8) Incorporate alternative effluent (g) Twenty-four hour reporting. Pollut- limitations or standards where war- ants for which the permittee must re- ranted by ‘‘fundamentally different port violations of maximum daily dis- factors,’’ under 40 CFR part 125, sub- charge limitations under part D; § 122.41(1)(6)(ii)(C) (24-hour reporting) (9) Incorporate any other appropriate shall be listed in the permit. This list requirements, conditions, or limita- shall include any toxic pollutant or tions (other than effluent limitations) hazardous substance, or any pollutant into a new source permit to the extent specifically identified as the method to allowed by the National Environmental control a toxic pollutant or hazardous Policy Act, 42 U.S.C. 4321 et seq. and substance. section 511 of the CWA, when EPA is (h) Durations for permits, as set forth the permit issuing authority. (See in § 122.46. § 122.29(c)). (i) Monitoring requirements. In addi- (e) Technology-based controls for toxic tion to § 122.48, the following moni- pollutants. Limitations established toring requirements: under paragraphs (a), (b), or (d) of this (1) To assure compliance with permit section, to control pollutants meeting limitations, requirements to monitor: the criteria listed in paragraph (e)(1) of (i) The mass (or other measurement this section. Limitations will be estab- specified in the permit) for each pollut- lished in accordance with paragraph ant limited in the permit; (e)(2) of this section. An explanation of (ii) The volume of effluent discharged the development of these limitations from each outfall; shall be included in the fact sheet (iii) Other measurements as appro- under § 124.56(b)(1)(i). priate including pollutants in internal (1) Limitations must control all toxic waste streams under § 122.45(i); pollut- pollutants which the Director deter- ants in intake water for net limita- mines (based on information reported tions under § 122.45(f); frequency, rate in a permit application under of discharge, etc., for noncontinuous § 122.21(g)(7) or in a notification under discharges under § 122.45(e); pollutants § 122.42(a)(1) or on other information) subject to notification requirements are or may be discharged at a level under § 122.42(a); and pollutants in sew- greater than the level which can be age sludge or other monitoring as spec- achieved by the technology-based ified in 40 CFR part 503; or as deter- treatment requirements appropriate to mined to be necessary on a case-by- the permittee under § 125.3(c) of this case basis pursuant to section 405(d)(4) chapter; or of the CWA. (2) The requirement that the limita- (iv) According to test procedures ap- tions control the pollutants meeting proved under 40 CFR Part 136 for the the criteria of paragraph (e)(1) of this analyses of pollutants or another section will be satisfied by: method is required under 40 CFR sub- (i) Limitations on those pollutants; chapters N or O. In the case of pollut- or ants for which there are no approved

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methods under 40 CFR Part 136 or oth- (iii) Such report and certification be erwise required under 40 CFR sub- signed in accordance with § 122.22; and chapters N or O, monitoring must be (iv) Permits for storm water dis- conducted according to a test proce- charges associated with industrial ac- dure specified in the permit for such tivity from inactive mining operations pollutants. may, where annual inspections are im- (2) Except as provided in paragraphs practicable, require certification once (i)(4) and (i)(5) of this section, require- every three years by a Registered Pro- ments to report monitoring results fessional Engineer that the facility is shall be established on a case-by-case in compliance with the permit, or al- basis with a frequency dependent on ternative requirements. the nature and effect of the discharge, (5) Permits which do not require the but in no case less than once a year. submittal of monitoring result reports For sewage sludge use or disposal prac- at least annually shall require that the tices, requirements to monitor and re- permittee report all instances of non- port results shall be established on a compliance not reported under case-by-case basis with a frequency de- § 122.41(l) (1), (4), (5), and (6) at least an- pendent on the nature and effect of the nually. sewage sludge use or disposal practice; (j) Pretreatment program for POTWs. minimally this shall be as specified in Requirements for POTWs to: 40 CFR part 503 (where applicable), but (1) Identify, in terms of character and in no case less than once a year. volume of pollutants, any Significant (3) Requirements to report moni- Industrial Users discharging into the toring results for storm water dis- POTW subject to Pretreatment Stand- charges associated with industrial ac- ards under section 307(b) of CWA and 40 tivity which are subject to an effluent CFR part 403. limitation guideline shall be estab- (2)(i) Submit a local program when lished on a case-by-case basis with a required by and in accordance with 40 frequency dependent on the nature and CFR part 403 to assure compliance with effect of the discharge, but in no case pretreatment standards to the extent less than once a year. applicable under section 307(b). The (4) Requirements to report moni- local program shall be incorporated toring results for storm water dis- into the permit as described in 40 CFR charges associated with industrial ac- part 403. The program must require all tivity (other than those addressed in indirect dischargers to the POTW to paragraph (i)(3) of this section) shall be comply with the reporting require- established on a case-by-case basis ments of 40 CFR part 403. with a frequency dependent on the na- ture and effect of the discharge. At a (ii) Provide a written technical eval- minimum, a permit for such a dis- uation of the need to revise local limits charge must require: under 40 CFR 403.5(c)(1), following per- (i) The discharger to conduct an an- mit issuance or reissuance. nual inspection of the facility site to (3) For POTWs which are ‘‘sludge- identify areas contributing to a storm only facilities,’’ a requirement to de- water discharge associated with indus- velop a pretreatment program under 40 trial activity and evaluate whether CFR part 403 when the Director deter- measures to reduce pollutant loadings mines that a pretreatment program is identified in a storm water pollution necessary to assure compliance with prevention plan are adequate and prop- Section 405(d) of the CWA. erly implemented in accordance with (k) Best management practices (BMPs) the terms of the permit or whether ad- to control or abate the discharge of ditional control measures are needed; pollutants when: (ii) The discharger to maintain for a (1) Authorized under section 304(e) of period of three years a record summa- the CWA for the control of toxic pollut- rizing the results of the inspection and ants and hazardous substances from a certification that the facility is in ancillary industrial activities; compliance with the plan and the per- (2) Authorized under section 402(p) of mit, and identifying any incidents of the CWA for the control of storm water non-compliance; discharges;

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(3) Numeric effluent limitations are mit was issued and would constitute infeasible; or cause for permit modification or rev- (4) The practices are reasonably nec- ocation and reissuance under § 122.62.) essary to achieve effluent limitations (2) In the case of effluent limitations and standards or to carry out the pur- established on the basis of Section poses and intent of the CWA. 402(a)(1)(B) of the CWA, a permit may NOTE TO PARAGRAPH (k)(4): Additional tech- not be renewed, reissued, or modified nical information on BMPs and the elements on the basis of effluent guidelines pro- of BMPs is contained in the following docu- mulgated under section 304(b) subse- ments: Guidance Manual for Developing Best quent to the original issuance of such Management Practices (BMPs), October 1993, EPA No. 833/B–93–004, NTIS No. PB 94–178324, permit, to contain effluent limitations ERIC No. W498); Storm Water Management which are less stringent than the com- for Construction Activities: Developing Pol- parable effluent limitations in the pre- lution Prevention Plans and Best Manage- vious permit. ment Practices, September 1992, EPA No. 832/ (i) Exceptions—A permit with respect R–92–005, NTIS No. PB 92–235951, ERIC No. to which paragraph (l)(2) of this section N482); Storm Water Management for Con- applies may be renewed, reissued, or struction Activities, Developing Pollution Prevention Plans and Best Management modified to contain a less stringent ef- Practices: Summary Guidance, EPA No. 833/ fluent limitation applicable to a pol- R–92–001, NTIS No. PB 93–223550; ERIC No. lutant, if— W139; Storm Water Management for Indus- (A) Material and substantial alter- trial Activities, Developing Pollution Pre- ations or additions to the permitted fa- vention Plans and Best Management Prac- cility occurred after permit issuance tices, September 1992; EPA 832/R–92–006, which justify the application of a less NTIS No. PB 92–235969, ERIC No. N477; Storm Water Management for Industrial Activities, stringent effluent limitation; Developing Pollution Prevention Plans and (B)(1) Information is available which Best Management Practices: Summary Guid- was not available at the time of permit ance, EPA 833/R–92–002, NTIS No. PB 94– issuance (other than revised regula- 133782; ERIC No. W492. Copies of those docu- tions, guidance, or test methods) and ments (or directions on how to obtain them) which would have justified the applica- can be obtained by contacting either the Of- fice of Water Resource Center (using the tion of a less stringent effluent limita- EPA document number as a reference) at tion at the time of permit issuance; or (202) 260–7786; or the Educational Resources (2) The Administrator determines Information Center (ERIC) (using the ERIC that technical mistakes or mistaken number as a reference) at (800) 276–0462. Up- interpretations of law were made in dates of these documents or additional BMP issuing the permit under section documents may also be available. A list of 402(a)(1)(b); EPA BMP guidance documents is available on the OWM Home Page at http:// (C) A less stringent effluent limita- www.epa.gov/owm. In addition, States may tion is necessary because of events over have BMP guidance documents. which the permittee has no control and These EPA guidance documents are for which there is no reasonably avail- listed here only for informational pur- able remedy; poses; they are not binding and EPA (D) The permittee has received a per- does not intend that these guidance mit modification under section 301(c), documents have any mandatory, regu- 301(g), 301(h), 301(i), 301(k), 301(n), or latory effect by virtue of their listing 316(a); or in this note. (E) The permittee has installed the (l) Reissued permits. (1) Except as pro- treatment facilities required to meet vided in paragraph (l)(2) of this section the effluent limitations in the previous when a permit is renewed or reissued, permit and has properly operated and interim effluent limitations, standards maintained the facilities but has nev- or conditions must be at least as strin- ertheless been unable to achieve the gent as the final effluent limitations, previous effluent limitations, in which standards, or conditions in the pre- case the limitations in the reviewed, vious permit (unless the circumstances reissued, or modified permit may re- on which the previous permit was flect the level of pollutant control ac- based have materially and substan- tually achieved (but shall not be less tially changed since the time the per- stringent than required by effluent

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guidelines in effect at the time of per- Secretary of the department in which mit renewal, reissuance, or modifica- the Coast Guard is operating, that es- tion). tablish specifications for safe transpor- (ii) Limitations. In no event may a tation, handling, carriage, and storage permit with respect to which para- of pollutants. graph (l)(2) of this section applies be (q) Navigation. Any conditions that renewed, reissued, or modified to con- the Secretary of the Army considers tain an effluent limitation which is necessary to ensure that navigation less stringent than required by effluent and anchorage will not be substantially guidelines in effect at the time the per- impaired, in accordance with § 124.59 of mit is renewed, reissued, or modified. this chapter. In no event may such a permit to dis- charge into waters be renewed, issued, (r) Great Lakes. When a permit is or modified to contain a less stringent issued to a facility that discharges into effluent limitation if the implementa- the Great Lakes System (as defined in tion of such limitation would result in 40 CFR 132.2), conditions promulgated a violation of a water quality standard by the State, Tribe, or EPA pursuant under section 303 applicable to such to 40 CFR part 132. waters. (s) Qualifying State, Tribal, or local (m) Privately owned treatment works. programs. (1) For storm water dis- For a privately owned treatment charges associated with small con- works, any conditions expressly appli- struction activity identified in cable to any user, as a limited co-per- § 122.26(b)(15), the Director may include mittee, that may be necessary in the permit conditions that incorporate permit issued to the treatment works qualifying State, Tribal, or local ero- to ensure compliance with applicable sion and sediment control program re- requirements under this part. Alter- quirements by reference. Where a natively, the Director may issue sepa- qualifying State, Tribal, or local pro- rate permits to the treatment works gram does not include one or more of and to its users, or may require a sepa- the elements in this paragraph (s)(1), rate permit application from any user. then the Director must include those The Director’s decision to issue a per- elements as conditions in the permit. A mit with no conditions applicable to qualifying State, Tribal, or local ero- any user, to impose conditions on one sion and sediment control program is or more users, to issue separate per- mits, or to require separate applica- one that includes: tions, and the basis for that decision, (i) Requirements for construction shall be stated in the fact sheet for the site operators to implement appro- draft permit for the treatment works. priate erosion and sediment control (n) Grants. Any conditions imposed in best management practices; grants made by the Administrator to (ii) Requirements for construction POTWs under sections 201 and 204 of site operators to control waste such as CWA which are reasonably necessary discarded building materials, concrete for the achievement of effluent limita- truck washout, chemicals, litter, and tions under section 301 of CWA. sanitary waste at the construction site (o) Sewage sludge. Requirements that may cause adverse impacts to under section 405 of CWA governing the water quality; disposal of sewage sludge from publicly (iii) Requirements for construction owned treatment works or any other site operators to develop and imple- treatment works treating domestic ment a storm water pollution preven- sewage for any use for which regula- tion plan. (A storm water pollution tions have been established, in accord- prevention plan includes site descrip- ance with any applicable regulations. tions, descriptions of appropriate con- (p) Coast Guard. When a permit is trol measures, copies of approved issued to a facility that may operate at certain times as a means of transpor- State, Tribal or local requirements, tation over water, a condition that the maintenance procedures, inspection discharge shall comply with any appli- procedures, and identification of non- cable regulations promulgated by the storm water discharges); and

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(iv) Requirements to submit a site cility. For new sources or new dis- plan for review that incorporates con- chargers, actual production shall be es- sideration of potential water quality timated using projected production. impacts. The time period of the measure of pro- (2) For storm water discharges from duction shall correspond to the time construction activity identified in period of the calculated permit limita- § 122.26(b)(14)(x), the Director may in- tions; for example, monthly production clude permit conditions that incor- shall be used to calculate average porate qualifying State, Tribal, or monthly discharge limitations. local erosion and sediment control pro- (ii)(A)(1) The Director may include a gram requirements by reference. A condition establishing alternate permit qualifying State, Tribal or local ero- limitations, standards, or prohibitions sion and sediment control program is based upon anticipated increased (not one that includes the elements listed in to exceed maximum production capa- paragraph (s)(1) of this section and any bility) or decreased production levels. additional requirements necessary to (2) For the automotive manufacturing achieve the applicable technology- industry only, the Regional Adminis- based standards of ‘‘best available trator shall, and the State Director technology’’ and ‘‘best conventional may establish a condition under para- technology’’ based on the best profes- graph (b)(2)(ii)(A)(1) of this section if sional judgment of the permit writer. the applicant satisfactorily dem- [48 FR 14153, Apr. 1, 1983, as amended at 49 onstrates to the Director at the time FR 31842, Aug. 8, 1984; 49 FR 38049, Sept. 26, the application is submitted that its 1984; 50 FR 6940, Feb. 19, 1985; 50 FR 7912, Feb. actual production, as indicated in para- 27, 1985; 54 FR 256, Jan. 4, 1989; 54 FR 18783, graph (b)(2)(i) of this section, is sub- May 2, 1989; 54 FR 23895, June 2, 1989; 57 FR stantially below maximum production 11413, Apr. 2, 1992; 57 FR 33049, July 24, 1992; capability and that there is a reason- 60 FR 15386, Mar. 23, 1995; 64 FR 42469, Aug. 4, able potential for an increase above ac- 1999; 64 FR 68847, Dec. 8, 1999; 65 FR 30908, tual production during the duration of May 15, 2000; 66 FR 65337, Dec. 18, 2001; 69 FR 41682, July 9, 2004; 70 FR 60191, Oct. 14, 2005; the permit. 71 FR 35040, June 16, 2006; 72 FR 11212, Mar. (B) If the Director establishes permit 12, 2007] conditions under paragraph (b)(2)(ii)(A) of this section: § 122.45 Calculating NPDES permit (1) The permit shall require the per- conditions (applicable to State mittee to notify the Director at least NPDES programs, see § 123.25). two business days prior to a month in (a) Outfalls and discharge points. All which the permittee expects to operate permit effluent limitations, standards at a level higher than the lowest pro- and prohibitions shall be established duction level identified in the permit. for each outfall or discharge point of The notice shall specify the antici- the permitted facility, except as other- pated level and the period during which wise provided under § 122.44(k) (BMPs the permittee expects to operate at the where limitations are infeasible) and alternate level. If the notice covers paragraph (i) of this section (limita- more than one month, the notice shall tions on internal waste streams). specify the reasons for the anticipated (b) Production-based limitations. (1) In production level increase. New notice the case of POTWs, permit effluent of discharge at alternate levels is re- limitations, standards, or prohibitions quired to cover a period or production shall be calculated based on design level not covered by prior notice or, if flow. during two consecutive months other- (2)(i) Except in the case of POTWs or wise covered by a notice, the produc- as provided in paragraph (b)(2)(ii) of tion level at the permitted facility this section, calculation of any permit does not in fact meet the higher level limitations, standards, or prohibitions designated in the notice. which are based on production (or (2) The permittee shall comply with other measure of operation) shall be the limitations, standards, or prohibi- based not upon the designed production tions that correspond to the lowest capacity but rather upon a reasonable level of production specified in the per- measure of actual production of the fa- mit, unless the permittee has notified

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ENVIRONMENTAL PROTECTION of waters, reduced eutrophication of for readers regarding entities likely to be AGENCY aquatic systems, benefit to wildlife and regulated by this action. This table lists endangered and threatened species, the types of entities that EPA is now 40 CFR Parts 9, 122 , 123, and 124 tourism benefits, biodiversity benefits aware could potentially be regulated by [FRLÐ6470±8] and reduced costs for siting reservoirs. this action. Other types of entities not In addition, the costs of industrial storm listed in the table could also be RIN 2040±AC82 water controls will decrease due to the regulated. To determine whether your exclusion of storm water discharges facility or company is regulated by this National Pollutant Discharge from facilities where there is ‘‘no action, you should carefully examine Elimination SystemÐRegulations for exposure’’ of storm water to industrial the applicability criteria in §§ 122.26(b), Revision of the Water Pollution Control activities and materials. 122.31, 122.32, and 123.35 of the final Program Addressing Storm Water DATES: This regulation is effective on rule. If you have questions regarding the Discharges February 7, 2000. The incorporation by applicability of this action to a AGENCY: Environmental Protection reference of the rainfall erosivity factor particular entity, consult the person Agency (EPA). publication listed in the rule is listed in the preceding FOR FURTHER approved by the Director of the Federal INFORMATION CONTACT section. ACTION: Final rule. Register as of February 7, 2000. For Table of Contents: SUMMARY: Today’s regulations (Phase II) judicial review purposes, this final rule expand the existing National Pollutant is promulgated as of 1:00 p.m. Eastern I. Background Discharge Elimination System (NPDES) Standard Time, on December 22, 1999 A. Proposed Rule and Pre-proposal as provided in 40 CFR 23.2. Outreach storm water program (Phase I) to B. Water Quality Concerns/Environmental ADDRESSES: address storm water discharges from The complete Impact Studies and Assessments small municipal separate storm sewer administrative record for the final rule 1. Urban Development systems (MS4s) (those serving less than and the ICR have been established a. Large-Scale Studies and Assessments 100,000 persons) and construction sites under docket numbers W–97–12 (rule) b. Local and Watershed-Based Studies that disturb one to five acres. Although and W–97–15 (ICR), and includes c. Beach Closings/Advisories these sources are automatically supporting documentation as well as 2. Non-storm Water Discharges Through designated by today’s rule, the rule printed, paper versions of electronic Municipal Storm Sewers 3. Construction Site Runoff allows for the exclusion of certain comments. Copies of information in the record are available upon request. A C. Statutory Background sources from the national program based D. EPA’s Reports to Congress on a demonstration of the lack of impact reasonable fee may be charged for E. Industrial Facilities Owned or Operated on water quality, as well as the copying. The record is available for by Small Municipalities inclusion of others based on a higher inspection and copying from 9 a.m. to F. Related Nonpoint Source Programs likelihood of localized adverse impact 4 p.m., Monday through Friday, II. Description of Program on water quality. Today’s regulations excluding legal holidays, at the Water A. Overview also exclude from the NPDES program Docket, EPA, East Tower Basement, 401 1. Objectives EPA Seeks to Achieve in Today’s Rule storm water discharges from industrial M Street, SW, Washington, DC. For access to docket materials, please call 2. General Requirements for Regulated facilities that have ‘‘no exposure’’ of Entities Under Today’s Rule industrial activities or materials to 202/260–3027 to schedule an 3. Integration of Today’s Rule With the storm water. Finally, today’s rule appointment. Existing Storm Water Program extends from August 7, 2001 until FOR FURTHER INFORMATION CONTACT: 4. General Permits March 10, 2003 the deadline by which George Utting, Office of Wastewater 5. Tool Box certain industrial facilities owned by Management, Environmental Protection 6. Deadlines Established in Today’s Action small MS4s must obtain coverage under Agency, Mail Code 4203, 401 M Street, B. Readable Regulations an NPDES permit. This rule establishes SW, Washington, DC 20460; (202) 260– C. Program Framework: NPDES Approach 5816; [email protected]. D. Federal Role a cost-effective, flexible approach for 1. Develop Overall Framework of the reducing environmental harm by storm SUPPLEMENTARY INFORMATION: Entities Program water discharges from many point potentially regulated by this action 2. Encourage Consideration of ‘‘Smart sources of storm water that are currently include: Growth’’ Approaches unregulated. 3. Provide Financial Assistance EPA believes that the implementation Category Examples of regulated 4. Implement the Program in Jurisdictions of the six minimum measures identified entities not Authorized to Administer the NPDES Program for small MS4s should significantly Federal, State, Operators of small separate reduce pollutants in urban storm water 5. Oversee State and Tribal Programs Tribal, and storm sewer systems, in- 6. Comply with Applicable Requirements compared to existing levels in a cost- Local Gov- dustrial facilities that dis- as a Discharger effective manner. Similarly, EPA ernments. charge storm water asso- E. State Role believes that implementation of Best ciated with industrial activ- 1. Develop the Program Management Practices (BMP) controls at ity or construction activity 2. Comply With Applicable Requirements small construction sites will also result disturbing 1 to 5 acres. as a Discharger in a significant reduction in pollutant Industry ...... Operators of industrial facili- 3. Communicate with EPA discharges and an improvement in ties that discharge storm F. Tribal Role water associated with in- G. NPDES Permitting Authority’s Role for surface water quality. EPA believes this dustrial activity. rule will result in monetized financial, the NPDES Storm Water Small MS4 Construction Operators of construction ac- Program recreational and health benefits, as well Activity. tivity disturbing 1 to 5 1. Comply With Implementation as benefits that EPA has been unable to acres. Requirements monetize. Expected benefits include 2. Designate Sources reduced scouring and erosion of This table is not intended to be a. Develop Designation Criteria streambeds, improved aesthetic quality exhaustive, but rather provides a guide b. Apply Designation Criteria

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68723 c. Designate Physically Interconnected J. Conditional Exclusion for ‘‘No Exposure’’ deadline is changed from August 7, Small MS4s of Industrial Activities and Materials to 2001 until March 10, 2003. d. Respond to Public Petitions for Storm Water In 1972, Congress amended the Designation 1. Background Federal Water Pollution Control Act 3. Provide Waivers 2. Today’s Rule (commonly referred to as the Clean 3. Definition of ‘‘No Exposure’’ 4. Issue Permits Water Act (CWA)) to prohibit the 5. Support and Oversee the Local Programs K. Public Involvement/Public Role H. Municipal Role L. Water Quality Issues discharge of any pollutant to waters of 1. Scope of Today’s Rule 1. Water Quality Based Effluent Limits the United States from a point source 2. Municipal Definitions 2. Total Maximum Daily Loads and unless the discharge is authorized by an a. Municipal Separate Storm Sewer Analysis to Determine the Need for NPDES permit. The NPDES program is Systems (MS4s) Water Quality-Based Limitations a program designed to track point b. Small Municipal Separate Storm Sewer 3. Anti-Backsliding sources and require the implementation Systems 4. Water Quality-Based Waivers and of the controls necessary to minimize i. Combined Sewer Systems (CSS) Designations III. Cost-Benefit Analysis the discharge of pollutants. Initial ii. Owners/Operators efforts to improve water quality under c. Regulated Small MS4s A. Costs 1. Municipal Costs the NPDES program primarily focused i. Urbanized Area Description on reducing pollutants in industrial ii. Rationale for Using Urbanized Areas 2. Construction Costs B. Quantitative Benefits d. Municipal Designation by the Permitting process wastewater and municipal 1. National Water Quality Model Authority sewage. These discharge sources were 2. National Water Quality Assessment e. Waiving the Requirements for Small easily identified as responsible for poor, a. Municipal Measures MS4s often drastically degraded, water quality i. Fresh Waters Benefits 3. Municipal Permit Requirements conditions. ii. Marine Waters Benefits As pollution control measures for a. Overview b. Construction Benefits i. Summary of Permitting Options c. Summary of Benefits From the National industrial process wastewater and ii. Water Quality-Based Requirements Water Quality Assessment municipal sewage were implemented iii. Maximum Extent Practicable C. Qualitative Benefits and refined, it became increasingly b. Program Requirements—Minimum D. National Economic Impact evident that more diffuse sources of Control Measures IV. Regulatory Requirements water pollution were also significant i. Public Education and Outreach on Storm A. Paperwork Reduction Act causes of water quality impairment. Water Impacts B. Executive Order 12866 Specifically, storm water runoff ii. Public Involvement/Participation C. Unfunded Mandates Reform Act iii. Illicit Discharge Detection and draining large surface areas, such as 1. Summary of UMRA Section 202 Written agricultural and urban land, was found Elimination Statement iv. Construction Site Storm Water Runoff 2. Selection of the Least Costly, Most Cost- to be a major cause of water quality Control Effective or Least Burdensome impairment, including the v. Post-Construction Storm Water Alternative That Achieves the Objectives nonattainment of designated beneficial Management in New Development and of the Statute uses. Redevelopment 3. Effects on Small Governments In 1987, Congress amended the CWA vi. Pollution Prevention/Good D. Executive Order 13132 to require implementation, in two Housekeeping for Municipal Operations E. Regulatory Flexibility Act phases, of a comprehensive national c. Application Requirements F. National Technology Transfer And program for addressing storm water i. Best Management Practices and Advancement Act discharges. The first phase of the Measurable Goals G. Executive Order 13045 program, commonly referred to as ii. Individual Permit Application for a H. Executive Order 13084 ‘‘Phase I,’’ was promulgated on § 122.34(b) Program I. Congressional Review Act iii. Alternative Permit Option/ Tenth November 16, 1990 (55 FR 47990). Amendment I. Background Phase I requires NPDES permits for storm water discharge from a large iv. Satisfaction of Minimum Measure A. Proposed Rule and Pre-Proposal Obligations by Another Entity number of priority sources including Outreach v. Joint Permit Programs municipal separate storm sewer systems d. Evaluation and Assessment On January 9, 1998 (63 FR 1536), EPA (‘‘MS4s’’) generally serving populations i. Recordkeeping proposed to expand the National of 100,000 or more and several ii. Reporting Pollutant Discharge Elimination System categories of industrial activity, iii. Permit-As-A-Shield (NPDES) storm water program to including construction sites that disturb e. Other Applicable NPDES Requirements include storm water discharges from five or more acres of land. f. Enforceability municipal separate storm sewer systems Today’s rule, which is the second g. Deadlines h. Reevaluation of Rule (MS4s) and construction sites that were phase of the storm water program, I. Other Designated Storm Water smaller than those previously included expands the existing program to include Discharges in the program. The proposal also discharges of storm water from smaller 1. Discharges Associated with Small addressed industrial sources that have municipalities in urbanized areas and Construction Activity ‘‘no exposure’’ of industrial activities from construction sites that disturb a. Scope and materials to storm water. Today, between one and five acres of land. b. Waivers EPA is promulgating a final rule to Today’s rule allows certain sources to be i. Rainfall-Erosivity Waiver implement most of the proposed excluded from the national program ii. Water Quality Waiver revisions with minor changes based on based on a demonstrable lack of impact c. Permit Process and Administration public comments received on the on water quality. The rule also allows d. Cross-Referencing State, Tribal, or Local Erosion and Sediment Control Programs proposal. Today’s final rule also extends other sources not automatically e. Alternative Approaches the deadline by which certain industrial regulated on a national basis to be 2. Other Sources facilities operated by municipalities of designated for inclusion based on 3. ISTEA Sources less than 100,000 population must be increased likelihood for localized 4. Residual Designation Authority covered by a NPDES permit; the adverse impact on water quality.

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Today’s rule also conditionally excludes quality program other than the NPDES Subcommittee members provided storm water discharges from industrial program. For additional details see the significant input and advice that EPA facilities that have ‘‘no exposure’’ of ‘‘Report on the EPA Storm Water considered in the context of public industrial activities or materials to Management Program (Rensselaerville comments received. Ultimately, the storm water. Today’s rule and the effort Study),’’ Appendix I of Storm Water Subcommittee did not provide a written that led to its development are Discharges Potentially Addressed by report back to the FACA Committee, commonly referred to as ‘‘Phase II.’’ On Phase II of the National Pollutant and the FACA Committee did not August 7, 1995, EPA promulgated a Discharge Elimination System: Report to provide written advice and final rule that required facilities to be Congress (EPA, 1995a). recommendations to EPA. The Agency, regulated under Phase II to apply for a EPA also conducted outreach with therefore, did not rely on group NPDES permit by August 7, 2001, representatives of small entities in recommendations in developing today’s unless the NPDES permitting authority conjunction with the convening of a rule, but does consider the process to designates them as requiring a permit by Small Business Advocacy Review Panel have resulted in important public an earlier date. (60 FR 40230). That rule under the Small Business Regulatory outreach. is referred to as ‘‘the Interim Phase II Enforcement Fairness Act (SBREFA). B. Water Quality Concerns/ Rule.’’ Today’s rule replaces the Interim This process is discussed in section IV.E Environmental Impact Studies and Phase II rule. of today’s preamble. For additional EPA performed extensive outreach background see the discussion in the Assessments and worked with a variety of preamble to the proposal for today’s Storm water runoff from lands stakeholders prior to proposing today’s rule. modified by human activities can harm rule. On September 9, 1992, EPA To assist EPA by providing advice surface water resources and, in turn, published a notice requesting and recommendations regarding the cause or contribute to an exceedance of information and public comment on urban municipal wet weather water water quality standards by changing how to prepare regulations under CWA pollution control program, EPA natural hydrologic patterns, accelerating section 402(p)(6) (see 57 FR 41344). The established the Urban Wet Weather stream flows, destroying aquatic habitat, notice identified three sets of issues Flows Federal Advisory Committee and elevating pollutant concentrations associated with developing new NPDES (hereinafter, ‘‘FACA Committee’’) under and loadings. Such runoff may contain storm water regulations: (1) How should the Federal Advisory Committee Act or mobilize high levels of contaminants, EPA identify unregulated sources of (FACA). The Office of Management and such as sediment, suspended solids, storm water to protect water quality, (2) Budget approved the charter for the nutrients (phosphorous and nitrogen), what types of control strategies should FACA Committee on March 10, 1995. heavy metals and other toxic pollutants, EPA develop for these sources, and (3) The FACA Committee provided a forum pathogens, toxins, oxygen-demanding what are appropriate deadlines for for identifying and addressing issues substances (organic material), and implementing new requirements. The associated with water quality impacts floatables (U.S. EPA. 1992. notice recognized that potential sources from storm water sources. Environmental Impacts of Storm Water for coverage under the section 402(p)(6) The FACA Committee established two Discharges: A National Profile. EPA regulations would fall into two main subcommittees: the Storm Water Phase 841–R–92–001. Office of Water. categories: municipal separate storm II FACA Subcommittee and the Sanitary Washington, DC). After a rain, storm sewer systems and individual Sewer Overflows (SSOs) FACA water runoff carries these pollutants (commercial and residential) sources. Subcommittee. Consistent with the into nearby streams, rivers, lakes, EPA received more than 130 comments requirements of FACA, the membership estuaries, wetlands, and oceans. The on the September 9, 1992, notice. For of both the FACA Committee and the highest concentrations of these further discussion of the comments subcommittees was balanced among contaminants often are contained in received, see Storm Water Discharges EPA’s various outside stakeholder ‘‘first flush’’ discharges, which occur Potentially Addressed by Phase II of the interests, including representatives from during the first major storm after an National Pollutant Discharge municipalities, States, Indian Tribes, extended dry period (Schueler, T.R. Elimination System: Report to Congress EPA, industrial and commercial sectors, 1994. ‘‘First Flush of Stormwater (EPA, 1995a), pp. 1–21 to 1–22, and agriculture, and environmental and Pollutants Investigated in Texas.’’ Note Appendix J (which provides a detailed public interest groups. 28. Watershed Protection Techniques summary of the comments received as The Storm Water Phase II FACA 1(2)). Individually and combined, these they relate to the specific issues raised Subcommittee (‘‘Subcommittee’’) met pollutants impair water quality, in the notice). fourteen times between September 1995 threatening designated beneficial uses In early 1993, the Rensselaerville and June 1998. The 32 Subcommittee and causing habitat alteration or Institute and EPA held public and members discussed possible regulatory destruction. expert meetings to assist in developing frameworks at these meetings as well as Uncontrolled storm water discharges and analyzing options for identifying during numerous other meetings and from areas of urban development and unregulated sources and possible conference calls. Members of the FACA construction activity negatively impact controls. The report on the 1993 Committee provided views regarding receiving waters by changing the meetings identified two options that the development of the ‘‘no exposure’’ physical, biological, and chemical were favored by the various groups that provision and other provisions in drafts composition of the water, resulting in an participated. One option was a program of the Phase II rule. EPA provided unhealthy environment for aquatic that allowed States to select sources to Subcommittee members with four organisms, wildlife, and humans. The be controlled in a manner consistent successive drafts of the proposed rule following sections discuss the studies with criteria developed by EPA. A and preamble, outlines of the rule, and data that address and support this second option was a tiered approach summaries of the written comments finding. under which EPA would select high received on each draft, and documents Although water quality problems also priority sources for control by NPDES identifying the changes made to each can occur from agricultural storm water permits and States would select other draft. In the course of providing input discharges and return flows from sources for control under a State water to the Committee, individual irrigated agriculture, this area of

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The addressed on a case-by-case (or Urbanization On Small Streams In The NURP study is the largest nationwide category-by-category) basis through the Puget Sound Lowland Ecoregion.’’ evaluation of storm water discharges, NPDES designation authority preserved Watershed Protection Techniques 2(4); which includes adverse impacts and by CWA section 402(p)(2)(6), as well as Yoder, C.O., R.J. Miltner, and D. White. sources, undertaken to date. today’s rule. 1999. ‘‘Assessing the Status of Aquatic EPA conducted the NURP study to Life Designated Uses in Urban and facilitate understanding of the nature of 1. Urban Development Suburban Watersheds.’’ In Proceedings: urban runoff from residential, Urbanization alters the natural National Conference on Retrofits commercial, and industrial areas. One infiltration capability of the land and Opportunities in Urban Environments. objective of the study was to generates a host of pollutants that are EPA 625–R–99–002, Washington, DC; characterize the water quality of associated with the activities of dense Yoder, C.O and R.J. Miltner. 1999. discharges from separate storm sewer populations, thus causing an increase in ‘‘Assessing Biological Quality and systems that drain residential, storm water runoff volumes and Limitations to Biological Potential in commercial, and light industrial pollutant loadings in storm water Urban and Suburban Watersheds in (industrial parks) sites. Storm water discharged to receiving waterbodies Ohio.’’ In Comprehensive Stormwater & samples from 81 residential and (U.S. EPA, 1992). Urban development Aquatic Ecosystem Management commercial properties in 22 urban/ increases the amount of impervious Conference Papers, Auckland, New suburban areas nationwide were surface in a watershed as farmland, Zealand). Furthermore, research has collected and analyzed during the 5- forests, and meadowlands with natural indicated that few, if any, urban streams year period between 1978 and 1983. The infiltration characteristics are converted can support diverse benthic majority of samples collected in the into buildings with rooftops, driveways, communities at imperviousness levels study were analyzed for eight sidewalks, roads, and parking lots with of 25 percent or more. An area of conventional pollutants and three heavy virtually no ability to absorb storm medium density single family homes metals. water. Storm water and snow-melt can be anywhere from 25 percent to Data collected under the NURP study runoff wash over these impervious nearly 60 percent impervious, indicated that discharges from separate areas, picking up pollutants along the depending on the design of the streets storm sewer systems draining runoff way while gaining speed and volume and parking (Schueler, 1994). from residential, commercial, and light because of their inability to disperse and In addition to impervious areas, urban industrial areas carried more than 10 filter into the ground. What results are development creates new pollution times the annual loadings of total storm water flows that are higher in sources as population density increases suspended solids (TSS) than discharges volume, pollutants, and temperature and brings with it proportionately from municipal sewage treatment plants than the flows in less impervious areas, higher levels of car emissions, car that provide secondary treatment. The which have more natural vegetation and maintenance wastes, pet waste, litter, NURP study also indicated that runoff soil to filter the runoff (U.S. EPA, 1997. pesticides, and household hazardous from residential and commercial areas Urbanization and Streams: Studies of wastes, which may be washed into carried somewhat higher annual Hydrologic Impacts. EPA 841–R–97-009. receiving waters by storm water or loadings of chemical oxygen demand Office of Water. Washington, DC). dumped directly into storm drains (COD), total lead, and total copper than Studies reveal that the level of designed to discharge to receiving effluent from secondary treatment imperviousness in an area strongly waters. More people in less space plants. Study findings showed that fecal correlates with the quality of the nearby results in a greater concentration of coliform counts in urban runoff receiving waters. For example, a study pollutants that can be mobilized by, or typically range from tens to hundreds of in the Puget Sound lowland ecoregion disposed into, storm water discharges thousands per hundred milliliters of found that when the level of basin from municipal separate storm sewer runoff during warm weather conditions, development exceeded 5 percent of the systems. A modeling system developed with the median for all sites being total impervious area, the biological for the Chesapeake Bay indicated that around 21,000/100 ml. This is generally integrity and physical habitat conditions contamination of the Bay and its consistent with studies that found that that are necessary to support natural tributaries from runoff is comparable to, fecal coliform mean values range from biological diversity and complexity if not greater than, contamination from 1,600 coliform fecal units (CFU)/100 ml declined precipitously (May, C.W., E.B. industrial and sewage sources (Cohn- to 250,000 cfu/100 ml (Makepeace, D.K., Welch, R.R. Horner, J.R. Karr, and B.W. Lee, R. and D. Cameron. 1992. ‘‘Urban D.W. Smith, and S.J. Stanley. 1995. May. 1997. Quality Indices for Stormwater Runoff Contamination of ‘‘Urban Storm Water Quality: Summary Urbanization Effects in Puget Sound the Chesapeake Bay: Sources and of Contaminant Data.’’ Critical Reviews Lowland Streams, Technical Report No. Mitigation.’’ The Environmental in Environmental Science and 154. University of Washington Water Professional, Vol. 14). Technology 25(2):93-139). Makepeace, Resources Series). Research conducted et al., summarized ranges of in numerous geographical areas, a. Large-Scale Studies and Assessments contaminants from storm water, concentrating on various variables and In support of today’s regulatory including physical contaminants such employing widely different methods, designation of MS4s in urbanized areas, as total solids (76—36,200 mg/L) and has revealed a similar conclusion: the Agency relied on broad-based copper (up to 1.41 mg/L); organic stream degradation occurs at relatively assessments of urban storm water runoff chemicals; organic compounds, such as low levels of imperviousness, such as 10 and related water quality impacts, as oil and grease (up to 110 mg/L); and to 20 percent (even as low as 5 to 10 well as more site-specific studies. The microorganisms.

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Monitoring data summarized in the Assessment. Prepared in cooperation partially supporting designated uses or NURP study provided important with the U.S. EPA, Office of Water, not supporting designated uses. information about urban runoff from Washington, DC), a comprehensive The 1996 Inventory also found urban residential, commercial, and light study of diffuse pollution sources runoff/discharges from storm sewers to industrial areas. The study concluded conducted under the sponsorship of the be a major source of water quality that the quality of urban runoff can be Association of State and Interstate Water impairment nationwide. Urban runoff/ affected adversely by several sources of Pollution Control Administrators storm sewers were found to be a source pollution that were not directly (ASIWPCA) and EPA revealed that 38 of pollution in 13 percent of impaired evaluated in the study, including illicit States reported urban runoff as a major rivers; 21 percent of impaired lakes, discharges, construction site runoff, and cause of designated beneficial use ponds, and reservoirs; and 45 percent of illegal dumping. Data from the NURP impairment and 21 States reported impaired estuaries (second only to study were analyzed further in the U.S. storm water runoff from construction industrial discharges). In addition, Geological Survey (USGS) Urban Storm sites as a major cause of beneficial use urban runoff was found to be the leading cause of ocean impairment for Water Data Base for 22 Metropolitan impairment. In addition, the 1996 Areas Throughout the United States those ocean miles surveyed. 305(b) Report (U.S. EPA. 1998. The In addition, a recent USGS study of study (Driver, N.E., M.H. Mustard, R.B. National Water Quality Inventory, 1996 Rhinesmith, and R.F. Middleburg. 1985. urban watersheds across the United Report to Congress. EPA 841–R–97–008. U.S. Geological Survey Urban Storm States has revealed a link between urban Office of Water. Washington, DC), Water Data Base for 22 Metropolitan development and contamination of local provides a national assessment of water Areas Throughout the United States. waterbodies. The study found the Report No. 85–337 USGS. Lakewood, quality based on biennial reports highest levels of organic contaminants, CO). The USGS report summarized submitted by the States as required known as polycyclic aromatic additional monitoring data compiled under CWA section 305(b) of the CWA. hydrocarbons (PAHs) (products of during the mid-1980s, covering 717 In the CWA 305(b) reports, States, combustion of wood, grass, and fossil storm events at 99 sites in 22 Tribes, and Territories assess their fuels), in the reservoirs of urbanized metropolitan areas and documented individual water quality control watersheds (U.S. Geological Survey problems associated with metals and programs by examining the attainment (USGS). 1998. Research Reveals Link sediment concentrations in urban storm or nonattainment of the designated uses Between Development and water runoff. More recent reports have assigned to their rivers, lakes, estuaries, Contamination in Urban Watersheds. confirmed the pollutant concentration wetlands, and ocean shores. A USGS news release. USGS National data collected in the NURP study designated use is the legally applicable Water-Quality Assessment Program). (Marsalek, J. 1990. ‘‘Evaluation of use specified in a water quality standard Urban storm water also can contribute Pollutant Loads from Urban Nonpoint for a watershed, waterbody, or segment significant amounts of toxicants to Sources.’’ Wat. Sci. Tech. 22(10/11):23– of a waterbody. The designated use is receiving waters. Pitt, et. al. (1993), 30; Makepeace, et al., 1995). the desirable use that the water quality found heavy metal concentrations in the Commenters argued that the NURP should support. Examples of designated majority of samples analyzed. Industrial study does not support EPA’s uses include drinking water supply, or commercial areas were likely to be contention that urban activities primary contact recreation (swimming), the most significant pollutant source significantly jeopardize attainment of and aquatic life support. Each CWA areas (Pitt, R., R. Field, M. Lalor, M. water quality standards. One commenter 305(b) report indicates the assessed Brown 1993. ‘‘Urban stormwater toxic argued that the NURP study and the fraction of a State’s waters that are fully pollutants: assessment, sources, and 1985 USGS study are seriously out of supporting, partially supporting, or not treatability’’ Water Environment date. Because they were issued 10 years supporting designated beneficial uses. Research, 67(3):260–75). or more before the implementation of In their reports, States, Tribes, and b. Local and Watershed-Based Studies the current storm water permit program, Territories first identified and then the data in those reports do not reflect In addition to the large-scale assigned the sources of water quality conditions that exist after nationwide studies and assessments, a impairment for each impaired implementation of permits issued by number of local and watershed-based waterbody using the following authorized States and EPA for storm studies from across the country have water from construction sites, large categories: industrial, municipal documented the detrimental effects of municipalities, and industrial activities. sewage, combined sewer overflows, urban storm water runoff on water In response, EPA notes that it is not urban runoff/storm sewers, agricultural, quality. A study of urban streams in relying solely on the NURP study to silvicultural, construction, resource Milwaukee County, Wisconsin, found describe current water quality extraction, land disposal, hydrologic local streams to be highly degraded due impairment. Rather, EPA is citing NURP modification, and habitat modification. primarily to urban runoff, while three as a source of data on typical pollutant The 1996 Inventory, based on a studies in the Atlanta, Georgia, region concentrations in urban runoff. Recent compilation of 60 individual 305(b) were characterized as being ‘‘the first studies have not found significantly reports submitted by States, Tribes, and documentation in the Southeast of the different pollutant concentrations in Territories, assessed the following strong negative relationship between urban runoff when compared to the percentages of total waters nationwide: urbanization and stream quality that has original NURP data (see Makepeace, et 19 percent of river and stream miles; 40 been observed in other ecoregions’’ al., 1995; Marsalek, 1990; and Pitt, et al., percent of lake, pond, and reservoir (Masterson, J. and R. Bannerman. 1994. 1995). acres; 72 percent of estuary square ‘‘Impacts of Storm Water Runoff on America’s Clean Water—the States’ miles; and 6 percent of ocean shoreline Urban Streams in Milwaukee County, Nonpoint Source Assessment waters. The 1996 Inventory indicated Wisconsin.’’ Paper presented at National (Association of State and Interstate that approximately 40 percent of the Symposium on Water Quality: Water Pollution Control Administrators Nation’s assessed rivers, lakes, and American Water Resources Association; (ASIWPCA). 1985. America’s Clean estuaries are impaired. Waterbodies Schueler, T.R. 1997. ‘‘Fish Dynamics in Water—The States’ Nonpoint Source deemed as ‘‘impaired’’ are either Urban Streams Near Atlanta, Georgia.’’

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Technical Note 94. Watershed and fecal coliform, but higher for total also document public health, shellfish Protection Techniques 2(4)). Several zinc (Bannerman, R.T., D.W. Owens, bed, and habitat impacts from storm other studies, including those R.B. Dods, and N.J. Hornewer. 1993. water runoff, including more than 823 performed in Arizona (Maricopa ‘‘Sources of Pollutants in Wisconsin beach closings/advisories issued in 1995 County), California (San Jose’s Coyote Stormwater.’’ Wat. Sci. Tech. 28(3– and more than 407 beach closing/ Creek), Massachusetts (Green River), 5):241–59). advisories issued in 1996 due to urban Virginia (Tuckahoe Creek), and Bannerman, et al. also found that runoff (Natural Resources Defense Washington (Puget Sound lowland streets contribute higher loads of Council. 1996. Testing the Waters ecoregion), all had the same finding: pollutants to urban storm water than Volume VI: Who Knows What You’re runoff from urban areas greatly impair any other residential development Getting Into. New York, NY; NRDC. stream ecology and the health of aquatic source. Two small urban residential 1997. Testing the Waters Volume VII: life; the more heavily developed the watersheds were evaluated to determine How Does Your Vacation Beach Rate. area, the more detrimental the effects that lawns and streets are the largest New York, NY; Morton, T. 1997. (Lopes, T. and K. Fossum. 1995. sources of total and dissolved Draining to the Ocean: The Effects of ‘‘Selected Chemical Characteristics and phosphorus in the basins (Waschbusch, Stormwater Pollution on Coastal Waters. Acute Toxicity of Urban Stormwater, R.J., W.R. Selbig, and R.T. Bannerman. American Oceans Campaign, Santa Streamflow, and Bed Material, Maricopa 1999. ‘‘Sources of Phosphorus in Monica, CA). The Epidemiological County, Arizona.’’ Water Resources Stormwater and Street Dirt from Two Study of Possible Adverse Health Effects Investigations Report 95–4074. USGS; Urban Residential Basins In Madison, of Swimming in Santa Monica Bay Pitt, R. 1995. ‘‘Effects of Urban Runoff Wisconsin, 1994–95.’’ Water Resources (Haile, R.W., et. al. 1996. ‘‘An on Aquatic Biota.’’ In Handbook of Investigations Report 99–4021. U.S. Epidemiological Study of Possible Ecotoxicology; Pratt, J. and R. Coler. Geological Survey). A number of other Adverse Health Effects of Swimming in 1979. ‘‘Ecological Effects of Urban studies have indicated that urban Santa Monica Bay.’’ Final Report Stormwater Runoff on Benthic roadways often contain significant prepared for the Santa Monica Bay Macroinvertebrates Inhabiting the Green quantities of metal elements and solids Restoration Project) concluded that River, Massachusetts.’’ Completion (Sansalone, J.J. and S.G. Buchberger. there is a 57 percent higher rate of Report Project No. A–094. Water 1997. ‘‘Partitioning and First Flush of illness in swimmers who swim adjacent Resources Research Center. University Metals in Urban Roadway Storm to storm drains than in swimmers who of Massachusetts at Amherst.; Schueler, Water.’’ ASCE Journal of Environmental swim more than 400 yards away from T.R. 1997. ‘‘Historical Change in a Engineering 123(2); Sansalone, J.J., J.M. storm drains. This and other studies Warmwater Fish Community in an Koran, J.A. Smithson, and S.G. document a relationship between Urbanizing Watershed.’’ Technical Note Buchberger. 1998. ‘‘Physical gastrointestinal illness in swimmers and 93. Watershed Protection Techniques Characteristics of Urban Roadway water quality, the latter of which can be 2(4); May, C., R. Horner, J. Karr, B. Mar, Solids Transported During Rain Events’’ heavily compromised by polluted storm and E. Welch. 1997. ‘‘Effects Of ASCE Journal of Environmental water discharges. Urbanization On Small Streams In The Engineering 124(5); Klein, L.A., M. 2. Non-Storm Water Discharges Through Puget Sound Lowland Ecoregion.’’ Lang, N. Nash, and S.L. Kirschner. 1974. Municipal Storm Sewers Watershed Protection Techniques 2(4)). ‘‘Sources of Metals in New York City Pitt and others also described the Wastewater’’ J. Water Pollution Control Studies have shown that discharges receiving water effects on aquatic Federation 46(12):2653–62; Barrett, M.E, from MS4s often include wastes and organisms associated with urban runoff R.D. Zuber, E.R. Collins, J.F. Malina, R.J. wastewater from non-storm water (Pitt, R.E. 1995. ‘‘Biological Effects of Charbeneau, and G.H Ward., 1993. ‘‘A sources. Federal regulations Urban Runoff Discharges’’ In Review and Evaluation of Literature (§ 122.26(b)(2)) define an illicit Stormwater Runoff and Receiving Pertaining to the Quantity and Control discharge as ‘‘* * * any discharge to an Systems: Impact, Monitoring, and of Pollution from Highway Runoff and MS4 that is not composed entirely of Assessment, ed. E.E Herricks, Lewis Construction.’’ Research Report 1943–1. storm water * * *,’’ with some Publishers; Crunkilton, R., J. Kleist, D. Center for Transportation Research, exceptions. These discharges are Bierman, J. Ramcheck, and W. DeVita. University of Texas, Austin). ‘‘illicit’’ because municipal storm sewer 1999. ‘‘Importance of Toxicity as a systems are not designed to accept, c. Beach Closings/Advisories Factor Controlling the Distribution of process, or discharge such wastes. Aquatic Organisms in an Urban Urban wet weather flows have been Sources of illicit discharges include, but Stream.’’ In Comprehensive Stormwater recognized as the primary sources of are not limited to: sanitary wastewater; & Aquatic Ecosystem Management estuarine pollution in coastal effluent from septic tanks; car wash, Conference Papers. Auckland, New communities. Urban storm water runoff, laundry, and other industrial Zealand). sanitary sewer overflows, and combined wastewaters; improper disposal of auto In Wisconsin, runoff samples were sewer overflows have become the largest and household toxics, such as used collected from streets, parking lots, causes of beach closings in the United motor oil and pesticides; and spills from roofs, driveways, and lawns. Source States in the past three years. Storm roadway and other accidents. areas were broken up into residential, water discharges from urban areas not Illicit discharges enter the system commercial, and industrial. Geometric only pose a threat to the ecological through either direct connections (e.g., mean concentration data for residential environment, they also can substantially wastewater piping either mistakenly or areas included total solids of about 500– affect human health. A survey of coastal deliberately connected to the storm 800 mg/L from streets and 600 mg/L and Great Lakes communities reports drains) or indirect connections (e.g., from lawns. Fecal coliform data from that in 1998, more than 1,500 beach infiltration into the MS4 from cracked residential areas ranged from 34,000 to closings and advisories were associated sanitary systems, spills collected by 92,000 cfu/100 mL for streets and with storm water runoff (Natural drain outlets, and paint or used oil driveways. Contaminant concentration Resources Defense Council. 1999. ‘‘A dumped directly into a drain). The data from commercial and industrial Guide to Water Quality at Vacation result is untreated discharges that source areas were lower for total solids Beaches’’ New York, NY). Other reports contribute high levels of pollutants,

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68728 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations including heavy metals, toxics, oil and sewers. These pollutants include It the Problem? Wat. Env. Tech. 4(9):63– grease, solvents, nutrients, viruses and sanitary waste and materials from sewer 8). bacteria into receiving waterbodies. The main construction (e.g., asbestos 3. Construction Site Runoff NURP study, discussed earlier, found cement, brick, cast iron, vitrified clay). that pollutant levels from illicit Municipalities have long recognized the Storm water discharges generated discharges were high enough to reverse problem of storm water during construction activities can cause significantly degrade receiving water infiltration into sanitary sewer an array of physical, chemical, and quality and threaten aquatic, wildlife, collection systems; this type of biological water quality impacts. and human health. The study noted infiltration often disrupts the operation Specifically, the biological, chemical, particular problems with illicit of the municipal sewage treatment and physical integrity of the waters may discharges of sanitary wastes, which can plant. become severely compromised. Water be directly linked to high bacterial The improper disposal of materials is quality impairment results, in part, counts in receiving waters and can be another illicit discharge-related problem because a number of pollutants are dangerous to public health. that can result in contaminated preferentially absorbed onto mineral or Because illicit discharges to MS4s can discharges from separate storm sewer organic particles found in fine sediment. create severe widespread contamination systems in two ways. First, materials The interconnected process of erosion and water quality problems, several may be disposed of directly in a catch (detachment of the soil particles), municipalities and urban counties basin or other storm water conveyance. sediment transport, and delivery is the primary pathway for introducing key performed studies to identify and Second, materials disposed of on the pollutants, such as nutrients eliminate such discharges. In Michigan, ground may either drain directly to a (particularly phosphorus), metals, and the Ann Arbor and Ypsilanti water storm sewer or be washed into a storm organic compounds into aquatic systems quality projects inspected 660 sewer during a storm event. Improper (Novotny, V. and G. Chesters. 1989. businesses, homes, and other buildings disposal of materials to street catch ‘‘Delivery of Sediment and Pollutants and identified 14 percent of the basins and other storm sewer inlets from Nonpoint Sources: A Water buildings as having improper storm often occurs when people mistakenly Quality Perspective.’’ Journal of Soil sewer drain connections. The program believe that disposal to such areas is an and Water Conservation, 44(6):568–76). assessment revealed that, on average, 60 environmentally sound practice. Part of percent of automobile-related Estimates indicate that 80 percent of the the confusion may occur because some phosphorus and 73 percent of the businesses, including service stations, areas are served by combined sewer automobile dealerships, car washes, Kjeldahl nitrogen in streams is systems, which are part of the sanitary body shops, and light industrial associated with eroded sediment (U.S. sewer collection system, and people facilities, had illicit connections to Department of Agriculture. 1989. ‘‘The assume that materials discharged to a storm sewer drains. The program Second RCA Appraisal, Soil, Water and catch basin will reach a municipal assessment also showed that a majority Related Resources on Nonfederal Land sewage treatment plant. Materials that of the illicit discharges to the storm in the United States, Analysis of are commonly disposed of improperly sewer system resulted from improper Condition and Trends.’’ Cited in include used motor oil; household toxic plumbing and connections, which had Fennessey, L.A.J., and A.R. Jarrett. 1994. materials; radiator fluids; and litter, been approved by the municipality ‘‘The Dirt in a Hole: a Review of such as disposable cups, cans, and fast- when installed (Washtenaw County Sedimentation Basins for Urban Areas Statutory Drainage Board. 1987. Huron food packages. EPA believes that there and Construction Sites.’’ Journal of Soil River Pollution Abatement Program). has been increasing success in and Water Conservation, 49(4):317–23). In addition, an inspection of urban addressing these problems through In watersheds experiencing intensive storm water outfalls draining into Inner initiatives such as storm drain stenciling construction activity, the localized Grays, Washington, indicated that 32 and recycling programs, including impacts of water quality may be severe percent of these outfalls had dry household hazardous waste special because of high pollutant loads, weather flows. Of these flows, 21 collection days. primarily sediments. Siltation is the percent were determined to have Programs that reduce illicit discharges largest cause of impaired water quality pollutant levels higher than the to separate storm sewers have improved in rivers and the third largest cause of pollutant levels expected in typical water quality in several municipalities. impaired water quality in lakes (U.S. urban storm water runoff characterized For example, Michigan’s Huron River EPA, 1998). The 1996 305(b) report also in the NURP study (U.S. EPA. 1993. Pollution Abatement Program found the found that construction site discharges Investigation of Inappropriate Pollutant elimination of illicit connections caused were a source of pollution in: 6 percent Entries Into Storm Drainage Systems— a measurable improvement in the water of impaired rivers; 11 percent of A User’s Guide. EPA 600/R–92/238. quality of the Washtenaw County storm impaired lakes, ponds, and reservoirs; Office of Research and Development. sewers and the Huron River and 11 percent of impaired estuaries. Washington, DC). That same document (Washtenaw County Statutory Drainage Introduction of coarse sediment (coarse reports a study in Toronto, Canada, that Board, 1987). In addition, an illicit sand or larger) or a large amount of fine found that 59 percent of outfalls from detection and remediation program in sediment is also a concern because of the MS4 had dry-weather flows. Houston, Texas, has significantly the potential of filling lakes and Chemical tests revealed that 14 percent improved the water quality of Buffalo reservoirs (along with the associated of these dry-weather flows were Bayou. Houston estimated that illicit remediation costs for dredging), as well determined to be grossly polluted. flows from 132 sources had a flow rate as clogging stream channels (e.g., Inflows from aging sanitary sewer as high as 500 gal/min. Sources of the Paterson, R.G., M.I. Luger, E.J. Burby, collection systems are one of the most illicit discharges included broken and E.J. Kaiser, H.R. Malcolm, and A.C. serious illicit discharge-related plugged sanitary sewer lines, illicit Beard. 1993. ‘‘Costs and Benefits of problems. Sanitary sewer systems connections from sanitary lines to storm Urban Erosion and Sediment Control: frequently develop leaks and cracks, sewer lines, and floor drain connections North Carolina Experience.’’ resulting in discharges of pollutants to (Glanton, T., M.T. Garrett, and B. Environmental Management 17(2):167– receiving waters through separate storm Goloby. 1992. The Illicit Connection: Is 78). Large inputs of coarse sediment into

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68729 stream channels initially will reduce Owen, O.S. 1975. Natural Resource three-fold increase in suspended stream depth and minimize habitat Conservation. New York: MacMillan. As sediment yields (Downs, S.C. and D.H. complexity by filling in pools (U.S. cited in Paterson, et al., 1993). Appel. 1986. Progress Report on the EPA. 1991. Monitoring Guidelines to A recent review of the efficiency of Effects of Highway Construction on Evaluate Effects of Forestry Activities on sediment basins indicated that inflows Suspended-Sediment Discharge in the Streams in the Pacific Northwest and from 12 construction sites had a mean Coal River and Trace Fork, West Alaska. EPA 910/9–91–001. Seattle, TSS concentration of about 4,500 mg/L Virginia, 1975–81. USGS Water WA). In addition, studies have shown (Brown, W.E. 1997. ‘‘The Limits of Resources Investigations Report 84– that stream reaches affected by Settling.’’ Technical Note No. 83. 4275. Charlestown, WV). During the construction activities often extend well Watershed Protection Techniques 2(3)). largest storm event, it was estimated downstream of the construction site. For In Virginia, suspended sediment that 80 percent of the sediment in the example, between 4.8 and 5.6 concentrations from housing stream originated from the construction kilometers of stream below construction construction sites were measured at site. As is often the case, the increase in sites in the Patuxent River watershed 500–3,000 mg/L, or about 40 times suspended sediment load could not be were observed to be impacted by larger than the concentrations from detected further downstream, where the sediment inputs (Fox, H.L. 1974. already-developed urban areas (Kuo, drainage area was more than 50 times ‘‘Effects of Urbanization on the Patuxent C.Y. 1976. ‘‘Evaluation of Sediment larger (269 square miles). River, with Special Emphasis on Yields Due to Urban Development.’’ Another study evaluated the effect of Sediment Transport, Storage, and Bulletin No. 98. Virginia Water 290 acres of highway construction on Migration.’’ Ph.D. dissertation. Johns Resources Research Center, Virginia watersheds ranging in size from 5 to 38 Hopkins University, Baltimore, MD. As Polytechnic Institute and State square miles. Suspended sediment loads Cited in Klein, R.D. 1979. ‘‘Urbanization University, Blacksburg, VA). in the smallest watershed increased by and Stream Quality Impairment.’’ Water Similar impacts from storm water 250 percent, and the estimated sediment Resources Bulletin 15(4): 948–63). runoff have been reported in a number yield from the construction area was 37 A primary concern at most of other studies. For example, Daniel, et tons/acre during a 2-year period construction sites is the erosion and al., monitored three residential (Hainly, R.A. 1980. The Effects of transport process related to fine construction sites in southeastern Highway Construction on Sediment sediment because rain splash, rills (i.e., Wisconsin and determined that annual Discharge into Blockhouse Creek and a channel small enough to be removed sediment yields were more than 19 Stream Valley Run, Pennsylvania. USGS by normal agricultural practices and times the yields from agricultural areas Water Resources Investigations Report typically less than 1-foot deep), and (Daniel, T.C., D. McGuire, D. Stoffel, 80–68. Harrisburg, PA). A more recent sheetwash encourage the detachment and B. Miller. 1979. ‘‘Sediment and study in Hawaii showed that highway and transport of this material to Nutrient Yield from Residential construction increased suspended waterbodies (Storm Water Quality Task Construction Sites’’ Journal of sediment loads by 56 to 76 percent in Force. 1993. California Storm Water Environmental Quality 8(3):304–08). three small (1 to 4 square mile) basins Best Management Practice Handbooks— Daniel, et al., identified total storm (Hill, B.R. 1996. Streamflow and Construction Activity. Oakland, CA: runoff, followed by peak storm runoff, Suspended-Sediment Loads Before and Blue Print Service). Construction sites as the most influential factors During Highway Construction, North also can generate other pollutants controlling the sediment loadings from Halawa, Haiku, and Kamooalii Drainage associated with onsite wastes, such as residential construction sites. Daniel, et Basins, Oahu, Hawaii, 1983–91. USGS sanitary wastes or concrete truck al., also found that suspended sediment Water Resources Investigations Report washout. concentrations were 15,000–20,000 mg/ 96–4259. Honolulu, HI). A 1970 study Although streams and rivers naturally L in moderate events and up to 60,000 determined that sediment yields from carry sediment loads, erosion from mg/L in larger events. construction areas can be as much as construction sites and runoff from Wolman and Schick (Wolman, M.G. 500 times the levels detected in rural developed areas can elevate these loads and A.P. Schick. 1967. ‘‘Effects of areas (National Association of Counties to levels well above those in Construction on Fluvial Sediment, Research Foundation. 1970. Urban Soil undisturbed watersheds. It is generally Urban and Suburban Areas of Erosion and Sediment Control. Water acknowledged that erosion rates from Maryland.’’ Water Resources Research Pollution Control Research Series, construction sites are much greater than 3(2): 451–64) studied the impacts of Program #15030 DTL. Federal Water from almost any other land use development on fluvial systems in Quality Administration, U.S. (Novotny, V. and H. Olem. 1994. Water Maryland and determined that sediment Department of Interior. Washington, DC) Quality: Prevention, Identification, and yields in areas undergoing construction Yorke and Herb (Yorke, T.H., and W.J. Management of Diffuse Pollution. New were 1.5 to 75 times greater than Herb. 1978. Effects of Urbanization on York: Van Nostrand Reinhold). Results detected in natural or agricultural Streamflow and Sediment Transport in from both field studies and erosion catchments. The authors summarize the the Rock Creek and Anacostia River models indicate that erosion rates from potential impacts of construction on Basins, Montgomery County, Maryland, construction sites are typically an order sediment yields by stating that ‘‘the 1962–74. USGS Professional Paper 1003, of magnitude larger than row crops and equivalent of many decades of natural Washington, DC) evaluated nine several orders of magnitude greater than or even agricultural erosion may take subbasins in the Maryland portion of rates from well-vegetated areas, such as place during a single year from areas the Anacostia watershed for more than forests or pastures (USDA. 1970. cleared for construction’’ (Wolman and a decade in an effort to define the ‘‘Controlling Erosion on Construction Schick, 1967). impacts of changing land use/land cover Sites.’’ Agriculture Information Bulletin, A number of studies have examined on sediment in runoff. Average annual Washington, DC; Meyer, L.D., W.H. the effects of road construction on suspended sediment yields for Wischmeier, and W.H. Daniel. 1971. erosion rates and sediment yields. A construction sites ranged from 7 to 100 ‘‘Erosion, Runoff and Revegetation of highway construction project in West tons/acre. Storm water discharges from Denuded Construction Sites.’’ Virginia disturbed only 4.2 percent of a construction sites that occur when the Transactions of the ASAE 14(1):138–41; 4.72-square-mile basin, but resulted in a land area is disturbed (and prior to

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68730 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations surface stabilization) can significantly sediment deposits, causing changes in measured from larger sites, EPA gave a impact designated uses. Examples of aquatic flora and fauna, such as fish grant to the Dane County, Wisconsin designated uses include public water species composition (Wolman and Land Conservation Department, in supply, recreation, and propagation of Schick, 1967). In addition, the primary cooperation with the USGS, to evaluate fish and wildlife. The siltation process cause of coral reef degradation in coastal sediment runoff from two small described previously can threaten all areas is attributed to land disturbances construction sites. The first was a 0.34 three designated uses by (1) depositing and dredging activities due to urban acre residential lot and the second was high concentrations of pollutants in development (Rogers, C.S. 1990. a 1.72 acre commercial office public water supplies; (2) decreasing the ‘‘Responses of Coral Reefs and Reef development. Runoff from the sites was depth of a waterbody, which can reduce Organizations to Sedimentation.’’ channeled to a single discharge point for the volume of a reservoir or result in Marine Ecology Progress Series, 62:185– monitoring. Each site was monitored limited use of a water body by boaters, 202). before, during, and after construction. swimmers, and other recreational EPA believes that the water quality The Dane County study found that enthusiasts; and (3) directly impairing impact from small construction sites is total solids concentrations from these the habitat of fish and other aquatic as high as or higher than the impact small sites are similar to total solids species, which can limit their ability to from larger sites on a per acre basis. The concentrations from larger construction reproduce. concentration of pollutants in the runoff sites. Results show that for both of the Excess sediment can cause a number from smaller sites is similar to the study sites, total solids and suspended concentrations in the runoff from larger solids concentrations were significantly of other problems for waterbodies. It is sites. The proportion of sediment that higher during construction than either associated with increased turbidity and makes it from the construction site to before or after construction. For reduced light penetration in the water surface waters is likely the same for example, preconstruction total solids column, as well as more long-term larger and smaller construction sites in concentrations averaged 642 mg/L effects associated with habitat urban areas because the runoff from during the period when ryegrass was destruction and increased difficulty in either site is usually delivered directly established, active construction total filtering drinking water. Numerous to the storm drain network where there solids concentrations averaged 2,788 studies have examined the effect that is no opportunity for the sediment to be mg/L, and post-construction total solids excess sediment has on aquatic filtered out. concentrations averaged 132 mg/L (on a ecosystems. For example, sediment from The expected contribution of total pollutant load basis, this equaled 7.4 lbs road construction activity in Northern sediment yields from small sites preconstruction, 35 lbs during Virginia reduced aquatic insect and fish depends, in part, on the extent to which construction, and 0.6 lbs post- communities by up to 85 percent and 40 erosion and sedimentation controls are construction for total solids). While this percent, respectively (Reed, J.R. 1997. being applied. Because current storm site was not properly stabilized before ‘‘Stream Community Responses to Road water regulations are more likely to construction, after construction was Construction Sediments.’’ Bulletin No. require erosion and sedimentation complete and the site was stabilized, 97. Virginia Water Resources Research controls on larger sites in urban areas, post-construction concentrations were Center, Virginia Polytechnic Institute, smaller construction sites that lack such more than 20 times less than during Blacksburg, VA. As cited in Klein, R.D. programs are likely to contribute a construction. The results were even 1990. A Survey of Quality of Erosion disproportionate amount of the total more dramatic for the commercial site. and Sediment Control and Storm Water sediment from construction activities The commercial site had one Management in the Chesapeake Bay (MacDonald, L.H. 1997. Technical preconstruction event, which resulted Watershed. Annapolis, MD: Chesapeake Justification for Regulating Construction in total solids concentrations of 138 mg/ Bay Foundation). Other studies have Sites 1–5 Acres in Size. Unpublished L, while active construction averaged shown that fine sediment (fine sand or report submitted to U.S. EPA, more than 15,000 mg/L and post- smaller) adversely affects aquatic Washington, DC). Smaller construction construction averaged only 200 mg/L ecosystems by reducing light sites are less likely to have an effective (on a pollutant load basis, this equaled penetration, impeding sight-feeding, plan to control erosion and 0.3 lbs preconstruction, 490 lbs during smothering benthic organisms, abrading sedimentation, are less likely to construction, and 13.4 lbs post- gills and other sensitive structures, properly implement and maintain their construction for total solids). The active reducing habitat by clogging interstitial plans, and are less likely to be inspected construction period resulted in more spaces within a streambed, and (Brown, W. and D. Caraco. 1997. than 75 times more sediment than either reducing the intergravel dissolved Controlling Storm Water Runoff before or after construction (Owens, oxygen by reducing the permeability of Discharges from Small Construction D.W., P. Jopke, D.W. Hall, J. Balousek the bed material (Everest, F.H., J.C. Sites: A National Review. Submitted to and A. Roa. 1999. ‘‘Soil Erosion from Beschta, K.V. Scrivener, J.R. Koski, J.R. Office of Wastewater Management, U.S. Small Construction Sites.’’ Draft USGS Sedell, and C.J. Cederholm. 1987. ‘‘Fine EPA, Washington, DC., by the Center for Fact Sheet. USGS and Dane County Sediment and Salmonid Production: A Watershed Protection, Silver Spring, Land Conservation Department, WI). Paradox.’’ Streamside Management: MD). The proportion of sediment that The total solids concentrations from Forestry and Fishery Interactions, makes it from the construction site to these small sites in Wisconsin are Contract No. 57, Institute of Forest surface waters is likely the same for similar to total solids concentrations Resources, University of Washington, larger and smaller construction sites in from larger construction sites. For Seattle, WA). For example, 4.8 and 5.6 urban areas because the runoff from example, a study evaluating the effects kilometers of stream below construction either site is usually delivered directly of highway construction in West sites in the Patuxent River watershed in to the storm drain network, where there Virginia found that a small storm Maryland were found to have fine is no opportunity for the sediment to be produced a sediment concentration of sediment amounts 15 times greater than filtered out. 7,520 mg/L (Downs and Appel, 1986). normal (Fox, 1974. As cited in Klein, To confirm its belief that sediment One important aspect of small 1979). Benthic organisms in the yields from small sites are as high as or construction sites is the number of small streambed can be smothered by higher than the 20 to 150 tons/acre/year sites relative to larger construction sites

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68731 and total land area within the Several commenters disputed the data stringent requirements necessary to watershed. Brown and Caraco surveyed presented in the proposed rule for storm meet water quality standards. Section 219 local jurisdictions to assess erosion water discharges from smaller 402(p)(3)(B) establishes NPDES permit and sediment control (ESC) programs. construction sites. One commenter standards for discharges from municipal Seventy respondents provided data on stated that EPA has not adequately separate storm sewer systems, or MS4s. the number of ESC permits for explained the basis for permitting NPDES permits for discharges from construction sites smaller than 5 acres. construction activity down to 1 MS4s (1) may be issued on a system or In 27 cases (38 percent of the disturbed acre. Another commenter jurisdiction-wide basis, (2) must include respondents), more than three-quarters stated that EPA did not present a requirement to effectively prohibit of the permits were for sites smaller sufficient data on water quality impacts non-storm water discharges into the than 5 acres; in another 18 cases (26 from construction sites disturbing less storm sewers, and (3) must require percent), more than half of the permits than 5 acres. controls to reduce pollutant discharges were for sites smaller than 5 acres. EPA believes that the data presented to the maximum extent practicable, In addition, data on the total acreage above sufficiently support nationwide including best management practices, disturbed by smaller construction sites designation of storm water discharges and other provisions as the have been collected recently in two from construction activity disturbing Administrator or the States determine to States (MacDonald, 1997). The most more than 1 acre. Based on total be appropriate for the control of such recent and complete data set is the disturbed land area within a watershed, pollutants. At this time, EPA determines listing of the disturbed area for each of the cumulative effects of numerous that water quality-based controls, the 3,831 construction sites permitted in small construction sites can have implemented through the iterative North Carolina for 1994–1995 and impacts similar to those of larger sites processes described today are 1995–1996. Nearly 61 percent of the in a particular area. In addition, waivers appropriate for the control of such sites that were 1 acre or larger were for storm water discharges from smaller pollutants and will result in reasonable between 1.0 and 4.9 acres in size. This construction activity will exclude sites further progress towards attainment of proportion was consistent between not expected to impair water quality. water quality standards. See sections years. Data showed that this range of EPA will continue to collect water II.L and II.H.3 of the preamble. sites accounted for 18 percent of the quality data on construction site storm In CWA section 402(p)(4), Congress total area disturbed by construction. The water runoff. established statutory deadlines for the values showed very little variation C. Statutory Background initial steps in implementing the NPDES between the 2 years of data. The total program for storm water discharges. disturbed area for all sites over this 2- In 1972, Congress enacted the CWA to This section required development of year period was nearly 33,000 acres, or prohibit the discharge of any pollutant NPDES permit application regulations, about 0.1 percent of the total area of to waters of the United States from a submission of NPDES permit North Carolina. point source unless the discharge is applications, issuance of NPDES authorized by an NPDES permit. EPA estimates that construction sites permits for sources identified in section Congress added CWA section 402(p) in disturbing greater than 5 acres disturb 402(p)(2), and compliance with NPDES 1987 to require implementation of a 2.1-million acres of land (78.1 percent of permit conditions. In addition, this comprehensive program for addressing the total) while sites disturbing between section required industrial facilities and storm water discharges. Section 1 and 5 acres of land disturb 0.5-million large MS4s to submit NPDES permit 402(p)(1) required EPA or NPDES- acres of land (19.4 percent). The applications for storm water discharges authorized States or Tribes to issue remaining sites on less than 1 acres of by February 4, 1990. Medium MS4s NPDES permits for the following five land disturb 0.07-million acres of land were to submit NPDES permit classes of storm water discharges (only 2.5 percent of the total). Given the applications by February 4, 1992. EPA composed entirely of storm water high erosion rates associated with most and authorized NPDES States were (‘‘storm water discharges’’) specifically construction sites, small construction prohibited from requiring an NPDES listed under section 402(p)(2): sites can be a significant source of water permit for any other storm water (A) a discharge subject to an NPDES quality impairment, particularly in discharges until October 1, 1994. permit before February 4, 1987 small watersheds that are undergoing (B) a discharge associated with Section 402(p)(5) required EPA to rapid development. Exempting sites industrial activity conduct certain studies and submit a under 1 acre will exclude only about 2.5 (C) a discharge from a municipal report to Congress. This requirement is percent of acreage from program separate storm sewer system serving a discussed in the following section. coverage, but will exclude a far higher population of 250,000 or more Section 402(p)(6) requires EPA, in number of sites, approximately 25 (D) a discharge from a municipal consultation with States and local percent. separate storm sewer system serving a officials, to issue regulations for the Several studies have determined that population of 100,000 or more but less designation of additional storm water the most effective construction runoff than 250,000 discharges to be regulated to protect control programs rely on local plan (E) a discharge that an NPDES water quality. It also requires EPA to review and field enforcement (Paterson, permitting authority determines to be extend the existing storm water program R. G. 1994. ‘‘Construction Practices: the contributing to a violation of a water to regulate newly designated sources. At Good, the Bad, and the Ugly.’’ quality standard or a significant a minimum, the extension must Watershed Protection Techniques 1(3)). contributor of pollutants to the waters of establish (1) priorities, (2) requirements In his review, Paterson suggests that, the United States. for State storm water management given the critical importance of field Section 402(p)(3)(A) requires storm programs, and (3) expeditious implementation of erosion and sediment water discharges associated with deadlines. Section 402(p)(6) specifies control programs and the apparent industrial activity to meet all applicable that the program may include shortcomings that exist, much more provisions of section 402 and section performance standards, guidelines, focus should be given to plan 301 of the CWA, including technology- guidance, and management practices implementation. based requirements and any more and treatment requirements, as

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The study repair, and intensive agricultural notices and evaluation of comments, was to identify unregulated sources of activities). and recent research and analysis. EPA storm water discharges, determine the EPA reported on the latter component does not interpret the congressional nature and extent of pollutants in such of the section 402(p)(5) study via reporting requirements of CWA section discharges, and establish procedures President Clinton’s Clean Water 402(p)(5) to be the sole basis for and methods to mitigate the impacts of Initiative, which was released on determining sources to be regulated such discharges on water quality. February 1, 1994 (U.S. Environmental under today’s final rule. Section 402(p)(5) also required EPA to Protection Agency, Office of Water. EPA’s decision to designate on a report the results of the first two 1994. President Clinton’s Clean Water national basis small MS4s in urbanized components of that study to Congress by Initiative. Washington, D.C. EPA 800–R– areas is supported by studies that October 1, 1988, and the final report by 94–001) (‘‘Initiative’’). The Initiative clearly show a direct correlation October 1, 1989. addressed a number of issues associated between urbanization and adverse water In March 1995, EPA submitted to with NPDES requirements for storm quality impacts from storm water Congress a report that reviewed and water discharges and proposed (1) discharges. (Schueler, T. 1987. analyzed the nature of storm water establishing a phased compliance with Controlling Urban Runoff: A Practical discharges from municipal and a water quality standards approach for Manual for Planning & Designing Urban industrialacilities that were not already BMPs. Metropolitan Washington regulated under the initial NPDES discharges from municipal separate storm sewer systems with priority on Council of Governments). ‘‘Urbanized regulations for storm water (U.S. areas’’—within which all small MS4s Environmental Protection Agency, controlling discharges from municipal growth and development areas, (2) would be covered—represent the most Office of Water. 1995. Storm Water intensely developed and dense areas of Discharges Potentially Addressed by clarifying that the maximum extent practicable standard should be applied the Nation. They constitute only two Phase II of the National Pollutant percent of the land area but 63 percent in a site-specific, flexible manner, taking Discharge Elimination System Storm of the total population. See section I.B.1, into account cost considerations as well Water Program: Report to Congress. Urban Development, above, for studies as water quality effects, (3) providing an Washington, D.C. EPA 833–K–94–002) and assessments of the link between exemption from the NPDES program for (‘‘Report’’). The Report also analyzed urban development and storm water storm water discharges from industrial associated pollutant loadings and water impacts on water resources. quality impacts from these unregulated facilities with no activities or significant Commenters argued that the Report to sources. Based on identification of materials exposed to storm water, (4) Congress does not address storm water unregulated municipal sources and providing extensions to the statutory discharges from construction sites. They analysis of information on impacts of deadlines to complete implementation further argued that the designation of storm water discharges from municipal of the NPDES program for the storm small construction sites per today’s final sources, the Report recommended that water program, (5) targeting urbanized rule goes beyond the President’s 1994 the NPDES program for storm water areas for the requirements in the NPDES Initiative because the Initiative only focus on the 405 ‘‘urbanized areas’’ program for storm water, and (6) recommends requiring municipalities to identified by the Bureau of the Census. providing control of discharges from implement a storm water management The Report further found that a number inactive and abandoned mines located program to control unregulated storm of discharges from unregulated on Federal lands in a more targeted, water sources, ‘‘including discharges industrial facilities warranted further flexible manner. Additionally, prior to from construction of less than 5 acres, investigation to determine the need for promulgation of today’s rule, section which are part of growth, development regulation. It classified these 431 of the Agency’s Appropriation Act and significant redevelopment unregulated industrial discharges in two for FY 2000 (Departments of Veterans activities.’’ They point out that the groups: Group A and Group B. Group A Affairs and Housing and Urban Initiative provides that unregulated comprised sources that may be Development and Independent Agencies storm water discharges not addressed considered a high priority for inclusion Appropriations Act of 2000, Public Law through a municipal program would not in the NPDES program for storm water 106–74, section 432 (1999)) directed be covered by the NPDES program. because discharges from these sources EPA to report on certain matters to be Commenters assert that EPA has not are similar or identical to already covered in today’s rule. That report developed a record independent of its regulated sources. These ‘‘look alike’’ supplements the study required by section 402(p)(5) studies that storm water discharge sources were not CWA Section 402(p)(5). EPA is demonstrates the necessity of regulating covered in the initial NPDES regulations publishing the availability of that report under a separate NPDES permit storm for storm water due to the language used elsewhere in this issue of the Federal water discharges from smaller to define ‘‘associated with industrial Register. construction sites ‘‘to protect water activity.’’ In the initial regulations for Several commenters asserted that the quality.’’ EPA disagrees. storm water, ‘‘industrial activity’’ is Report to Congress is an inadequate EPA evaluated the nature and extent identified using Standard Industrial basis for the designation and regulation of pollutants from construction site Classification (SIC) codes. The use of of sources covered under today’s final sources in a process that was separate SIC codes led to incomplete rule, specifically the nationwide and distinct from the development of categorization of industrial activities designation of small municipal separate the Report to Congress. Today’s decision with discharges that needed to be storm sewer systems within urbanized to regulate certain storm water regulated to protect water quality. areas and construction activities discharges from construction sites Group B consisted of 18 industrial disturbing between one and five acres. disturbing less than 5 acres arose in part

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To obtain funding, States are include only those storm water discharges associated with industrial required to submit Nonpoint Source discharges from construction sites activity. On December 18, 1991, Assessment Reports identifying State disturbing 5 acres or more of total land Congress enacted the Intermodal waters that, without additional control area (see 40 CFR 122.26(b)(14)(x)). In its Surface Transportation Efficiency Act of nonpoint sources of pollution, could decision, the court concluded that the 5- (ISTEA), which postponed NPDES not reasonably be expected to attain or acre threshold was improper because permit application deadlines for most maintain applicable water quality the Agency had failed to identify storm water discharges associated with standards or other goals and information ‘‘to support its perception industrial activity at facilities that are requirements of the CWA. States are that construction activities on less than owned or operated by small also required to prepare and submit for 5 acres are non-industrial in nature’’ municipalities. EPA and States EPA approval a statewide Nonpoint (966 F.2d at 1306). The court remanded authorized to administer the NPDES Source Management Program for the below 5 acre exemption to EPA for program could not require any controlling nonpoint source water further proceedings (966 F.2d at 1310). municipality with a population of less pollution to navigable waters within the In a Federal Register notice issued on than 100,000 to apply for or obtain an State and improving the quality of such December 18, 1992, EPA noted that it NPDES permit for any storm water waters. State program submittals must did not believe that the Court’s decision discharge associated with industrial identify specific best management had the effect of automatically activity prior to October 1, 1992, except practices (BMPs) and measures that the subjecting small construction sites to for storm water discharges from airports, State proposes to implement in the first the existing application requirements power plants, or uncontrolled sanitary four years after program submission to and deadlines. EPA believed that landfills. See 40 CFR 122.26(e)(1); 57 FR reduce pollutant loadings from additional notice and comment were 11524, April 2, 1992 (reservation of identified nonpoint sources to levels necessary to clarify the status of these NPDES application deadlines for ISTEA required to achieve the stated water sites. The information received during facilities). quality objectives. the notice and comment process and The facilities exempted by ISTEA State nonpoint source programs additional research, as discussed in discharge storm water in the same funded under section 319 can include section I.B.3 Construction Site Runoff, manner (and are expected to use both regulatory and nonregulatory State formed the basis for the designation of identical processes and materials) as the and local approaches. Section construction activity disturbing between industrial facilities regulated under the 319(b)(2)(B) specifies that a combination one and five acres on a nationwide 1990 Phase I regulations. Accordingly, of ‘‘nonregulatory or regulatory basis. EPA’s objectives in today’s these facilities pose similar water programs for enforcement, technical proposal include an effort to (1) address quality problems. The extended assistance, financial assistance, the 9th Circuit remand, (2) address moratorium for these facilities was education, training, technology transfer, water quality concerns associated with necessary to allow municipalities and demonstration projects’ may be construction activities that disturb less additional time to comply with NPDES used, as necessary, to achieve than 5 acres of land, and (3) balance requirements. The proposal for today’s implementation of the BMPs or conflicting recommendations and rule would have maintained the existing measures identified in the section 319 concerns of stakeholders. deadline for seeking coverage under an submittals. One commenter noted that EPA’s NPDES permit (August 7, 2001). Section 6217 of the Coastal Zone Act proposal would fail to regulate Today’s rule changes the permit Reauthorization Amendments (CZARA) industrial facilities identified as Group application deadline for such of 1990 provides that States with A and Group B in the March 1995 municipally owned or operated approved coastal zone management Report to Congress. EPA is relying on facilities discharging industrial storm programs must develop coastal the analysis in the Report, which water to make it consistent with the nonpoint pollution control programs provided that the recommendation for application date for small regulated and submit them to EPA and the coverage was meant as guidance and MS4s. Because EPA missed its March National Oceanic and Atmospheric was not intended to be an identification 1999 deadline for promulgating today’s Administration (NOAA) for approval. of specific categories that must be rule, and the deadline for MS4s to Failure to submit an approvable regulated under Section 402(p)(6). submit permit applications has been program will result in a reduction of Report to Congress, p. 4–1. The Report extended to three years and 90 days Federal grants under both the Coastal recognized the existence of limited data from the date of this notice, the deadline Zone Management Act and section 319 on which to base loadings estimates to for permitting ISTEA sources has been of the CWA. support the nationwide designation of similarly extended. The permitting of State coastal nonpoint pollution individual or categories of sources. these sources is discussed below in control programs under CZARA must Report to Congress, p. 4–44. section ‘‘II.I.3. ISTEA Sources.’’ include enforceable policies and Furthermore, during FACA mechanisms that ensure Subcommittee discussion, EPA F. Related Nonpoint Source Programs implementation of the management continued to urge stakeholders to Today’s rule addresses point source measures throughout the coastal provide further data relating to discharges of storm water runoff and management area. EPA issued Guidance industrial and commercial storm water non-storm water discharges into MS4s. Specifying Management Measures for sources, which EPA did not receive. Many of these sources have been Sources of Nonpoint Pollution in EPA concluded that, due to insufficient addressed by nonpoint source control Coastal Waters under section 6217(g) in

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January 1993. The guidance identifies EPA is implementing the requirement locally-based designation and waivers. management measures for five major under CWA section 402(p)(6) to provide Nationwide designation applies to those categories of nonpoint source pollution. a comprehensive storm water program classes or categories of storm water The management measures reflect the that designates and controls additional discharges that EPA believes present a greatest degree of pollutant reduction sources of storm water discharges to high likelihood of having adverse water that is economically achievable for each protect water quality. Second, EPA is quality impacts, regardless of location. of the listed sources. These management addressing storm water discharges from Specifically, today’s rule designates measures provide reference standards the activities exempted under the 1990 discharges from small MS4s located in for the States to use in developing or storm water permit application urbanized areas and storm water refining their coastal nonpoint regulations that were remanded by the discharges from construction activities programs. A few management measures, Ninth Circuit Court of Appeals in NRDC that result in land disturbance equal to however, contain quantitative standards v. EPA, 966 F.2d 1292 (9th Circuit, or greater than one and less than five that specify pollutant loading 1992). These are construction activities acres. As noted under Section I.B., reductions. For example, the New disturbing less than 5 acres and so- Water Quality Concerns/Environmental Development Management Measure, called ‘‘light’’ industrial activities not which is applicable to construction in exposed to storm water (see discussion Impact Studies and Assessments, these urban areas, requires (1) that by design of ‘‘no exposure’’ below). Third, EPA is two categories of storm water sources, or performance the average annual total providing coverage for the so-called when unregulated, tend to cause suspended solid loadings be reduced by ‘‘donut holes’’ created by the existing significant adverse water quality 80 percent and (2) to the extent NPDES storm water program. Donut impacts. Additional sources are not practicable, that the pre-development holes are geographic gaps in the NPDES covered on a nationwide basis either peak runoff rate and average volume be storm water program’s regulatory because EPA currently lacks maintained. scheme. They are MS4s located within information indicating a consistent EPA and NOAA published Coastal areas covered by the existing NPDES potential for adverse water quality Nonpoint Pollution Control Program: storm water program, but not currently impact or because EPA believes that the Program Development and Approval addressed by the storm water program likelihood of adverse impacts on water Guidance (1993). The document because it is based on political quality is low, with some localized clarifies that States generally must jurisdictions. Finally, EPA also is trying exceptions. Additional individual implement management measures for to promote watershed planning as a sources or categories of storm water each source category identified in the framework for implementing water discharges could, however, be covered EPA guidance developed under section quality programs where possible. under the program through a local 6217(g). Coastal Nonpoint Pollution Control Programs are not required to Although EPA had options for designation process. A permitting address sources that are clearly different approaches (see alternatives authority may designate additional regulated under the NPDES program as discussed in the January 9, 1998, small MS4s after developing designation point source discharges. Specifically, proposed regulation), EPA believes it criteria and applying those criteria to such programs would not need to can best achieve its objectives through small MS4s located outside of an address small MS4s and construction flexible innovations within the urbanized area, in particular those with sites covered under NPDES storm water framework of the NPDES program. a population of 10,000 or more and a permits (both general and individual). Unlike the interim section 402(p)(6) population density of at least 1,000. storm water regulations EPA Exhibit 1 illustrates the designation II. Description of Program promulgated in 1995, EPA no longer framework for today’s final rule. A. Overview designates all of the unregulated storm water discharges for nationwide BILLING CODE 6560±50±P 1. Objectives EPA Seeks To Achieve in coverage under the NPDES program for Today’s Rule storm water. The framework for today’s EPA seeks to achieve several final rule is one that balances automatic objectives in today’s final rule. First, designation on a nationwide basis and

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BILLING CODE 6560±50±C

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The designation framework for 2. General Requirements for Regulated development and redevelopment; and today’s final rule provides a significant Entities Under Today’s Rule pollution prevention and good degree of flexibility. The proposed As previously noted, today’s final rule housekeeping of municipal operations. provisions for nationwide designation of defines additional classes and categories These program components will be storm water discharges from of storm water discharges for coverage implemented through NPDES permits. construction and from small MS4s in under the NPDES program. These A regulated small MS4 is required to urbanized areas allowed for a waiver of designated dischargers are required to submit to the NPDES permitting applicable requirements based on seek coverage under an NPDES permit. authority, either in its notice of intent appropriate water quality conditions. Furthermore, all NPDES-authorized (NOI) or individual permit application, Today’s final rule expands and States and Tribes are required to the BMPs to be implemented and the simplifies those waivers. implement these provisions and make measurable goals for each of the The permitting authority may waive any necessary amendments to current minimum control measures listed the requirement for a permit for any State and Tribal NPDES regulations to above. small MS4 serving a jurisdiction with a ensure consistency with today’s final The rule addresses all storm water population of less than 1,000 unless rule. EPA remains the NPDES discharges from construction site storm water controls are needed because permitting authority for jurisdictions activities involving clearing, grading the MS4 is contributing to a water without NPDES authorization. and excavating land equal to or greater quality impairment. The permitting Today’s final rule includes some new than 1 acre and less than 5 acres, unless authority may also waive permit requirements for NPDES permitting requirements are otherwise waived by coverage for MS4s serving a jurisdiction authorities implementing the CWA the NPDES permitting authority. with a population of less than 10,000 if section 402(p)(6) program. EPA has Discharges from such sites, as well as all waters that receive a discharge from made a significant effort to build construction sites disturbing less than 1 the MS4 have been evaluated and flexibility into the program while acre of land that are designated by the permitting authority, are required to discharges from the MS4 do not attempting to maintain an appropriate implement requirements set forth in the significantly contribute to a water level of national consistency. Permitting NPDES permit, which may reference the quality impairment or have the potential authorities must ensure that NPDES requirements of a qualifying local to cause an impairment. Today’s rule permits issued to MS4s include the program issued to cover such also allows States with a watershed minimum control measures established discharges. permitting approach to phase in under the program. Permitting coverage for MS4s in jurisdictions with authorities also have the ability to make The rule also addresses certain other populations under 10,000. numerous decisions including who is sources regulated under the existing regulated under the program, i.e., case- NPDES program for storm water. For Water quality conditions are also the by-case designations and waivers, and municipally-owned industrial sources basis for a waiver of requirements for how responsibilities should be allocated required to be regulated under the storm water discharges from between regulated entities. existing NPDES storm water program construction activities disturbing Today’s final rule extends the NPDES but exempted from immediate between one and five acres. For these program to include discharges from the compliance by the Intermodal Surface small construction sources, the rule following: small MS4s within urbanized Transportation Act of 1991 (ISTEA), the provides significant flexibility for areas (with the exception of systems rule revises the existing deadline for waiving otherwise applicable regulatory waived from the requirements by the seeking coverage under an NPDES requirements where a permitting NPDES permitting authority); other permit (August 7, 2001) to make it authority determines, based on water small MS4s meeting designation criteria consistent with the application date for quality and watershed considerations, to be established by the permitting small regulated MS4s. (See section I.3. that storm water discharge controls are authority; and any remaining MS4 that below.) The rule also provides relief not needed. contributes substantially to the storm from NPDES storm water permitting Coverage can be extended to water pollutant loadings of a physically requirements for industrial sources with municipal and construction sources interconnected MS4 already subject to no exposure of industrial materials and outside the nationwide designated regulation under the NPDES program. activities to storm water. classes or categories based on watershed Small MS4s include urban storm sewer 3. Integration of Today’s Rule With the and case-by-case assessments. For the systems owned by Tribes, States, Existing Storm Water Program municipal storm water program, today’s political subdivisions of States, as well rule provides broad discretion to NPDES as the United States, and other systems In developing an approach for today’s permitting authorities to develop and located within an urbanized area that final rule, numerous early interested implement criteria for designating storm fall within the definition of an MS4. stakeholders encouraged EPA to seek water discharges from small MS4s These include, for example, State opportunities to integrate, where outside of urbanized areas. Other storm departments of transportation (DOTs), possible, the proposed Phase II water discharges from unregulated public universities, and federal military requirements with existing Phase I industrial, commercial, and residential bases. requirements, thus facilitating a unified sources will not be subject to the NPDES Today’s final rule requires all storm water discharge control program. permit requirements unless a permitting regulated small MS4s to develop and EPA believes that this objective is met authority determines on a case-by-case implement a storm water management by using the NPDES framework. This basis (or on a categorical basis within program. Program components include, framework is already applied to identified geographic areas such as a at a minimum, 6 minimum measures to regulated storm water discharge sources State or watershed) that regulatory address: public education and outreach; and is extended to those sources controls are needed to protect water public involvement; illicit discharge designated under today’s rule. This quality. EPA believes that the flexibility detection and elimination; construction approach facilitates program provided in today’s rule facilitates site runoff control; post-construction consistency, public access to watershed planning. storm water management in new information, and program oversight.

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EPA believes that today’s final rule plan; such permit conditions must directly or indirectly to the provides consistency in terms of provide for attainment of applicable comprehensive NPDES storm water program coverage and requirements for water quality standards (including program. Based on this effort, EPA is existing and newly designated sources. designated uses), allocations of developing a tool box containing fact For example, the rule includes most of pollutant loads established by a TMDL, sheets and guidance documents the municipal donut holes, those MS4s and timing requirements for pertaining to the overall program and located in incorporated places, implementation of a TMDL. If the rule requirements (e.g., guidance on townships or towns with a population permitting authority issues a State-wide municipal and construction programs, under 100,000 that are within Phase I general permit, the permitting authority and permitting authority guidance on counties. These MS4s are not addressed may include separate conditions designation and waiver criteria); models by the existing NPDES storm water tailored to individual watersheds or of current programs aimed at assisting program while MS4s in the surrounding urbanized areas. Of course, for a newly States, Tribes, municipalities, and county are currently addressed. In regulated MS4, modification of an others in establishing programs; a addition, the minimum control existing individual MS4 permit to comprehensive list of reference measures required in today’s rule for include the newly regulated MS4 as a documents organized according to regulated small MS4s are very similar to ‘‘limited co-permittee’’ also remains an subject area (e.g., illicit discharges, a number of the permit requirements for option. watersheds, water quality standards medium and large MS4s under the attainment, funding sources, and similar 5. Tool Box existing storm water program. Following types of references); educational today’s rule, permit requirements for all During the FACA process, many materials; technical research data; and regulated MS4s (both those under the Storm Water Phase II FACA demonstration project results. The existing program and those under Subcommittee representatives expressed information collected by EPA will not today’s rule) will require an interest, which was endorsed by the only provide the background for tool implementation of BMPs. Furthermore, full Committee, in having EPA develop box materials, but will also be made with regard to the development of a ‘‘tool box’’ to assist States, Tribes, available through an information NPDES permits to protect water quality, municipalities, and other parties clearinghouse on the world wide web. EPA intends to apply the August 1, involved in the Phase II program. EPA With assistance from EPA, the 1996, Interim Permitting Approach for made a commitment to work with Storm American Public Works Association Water Quality-Based Effluent Water Phase II FACA Subcommittee (APWA) developed a workbook and Limitations in Storm Water Permits representatives in developing such a series of workshops on the proposed (hereinafter, ‘‘Interim Permitting tool box, with the expectation that a tool Phase II rule. Ten workshops were held Approach’’) (see Section II.L.1. for box would facilitate implementation of from September 1998 through May further description) to all MS4s covered the storm water program in an effective 1999. Depending on available funding, by the NPDES program. and cost-efficient manner. EPA has these workshops may continue after EPA is applying NPDES permit developed a preliminary working tool publication of today’s final rule. EPA requirements to construction sites below box (available on EPA’s web page at also intends to provide training to 5 acres that are similar to the existing www.epa.gov/owm/sw/toolbox). EPA enable regional offices to educate States, requirements for those above 5 acres intends to have the tool box fully Tribes, and municipalities about the and above. In addition, today’s rule developed by the time of the first storm water program and the allows compliance with qualifying general permits. EPA also intends to availability of the tool box materials. local, Tribal, or State erosion and update the tool box as resources and The CWA currently provides funding sediment controls to meet the erosion data become available. The tool box will mechanisms to support activities related and sediment control requirements of include the following eight main to storm water. These mechanisms will the general permits for storm water components: fact sheets; guidances; a be described in the tool box. Activities discharges associated with construction, menu of BMPs for the six MS4 funded under grant and loan programs, both above and below 5 acres. minimum measures; an information which could be used to assist in storm clearinghouse; training and outreach water program development, include 4. General Permits efforts; technical research; support for programs in the nonpoint source area, EPA recommends using general demonstration projects; and compliance storm water demonstration projects, permits for all newly regulated storm monitoring/assistance tools. EPA source water protection and wastewater water sources under today’s rule. The intends to issue the menu of BMPs, both construction projects. EPA has already use of general permits, instead of structural and non-structural, by provided funding for numerous research individual permits, reduces the October 2000. In addition, EPA will efforts in these areas, including a administrative burden on permitting issue by October 2000 a ‘‘model’’ permit database of BMP effectiveness studies authorities, while also limiting the and will issue by October 2001 guidance (described below), an assessment of paperwork burden on regulated parties materials on the development of technologies for storm water seeking permit authorization. Permitting measurable goals for municipal management, a study of the authorities may, of course, require programs. effectiveness of storm water BMPs for individual permits in some cases to In an attempt to avoid duplication, controlling the impacts of watershed address specific concerns, including the Agency has undertaken an effort to imperviousness, protocols for wet permit non-compliance. identify and coordinate sources of weather monitoring, development of a EPA recommends that general permits information that relate to the storm dynamic model for wet weather flows, for MS4s, in particular, be issued on a water discharge control program from and numerous outreach projects. watershed basis, but recognizes that both inside and outside the Agency. EPA has entered into a cooperative each permitting authority must decide Such information includes research and agreement with the Urban Water how to develop its general permit(s). demonstration projects, grants, storm Resources Research Council of the Permit conditions developed to address water management-related programs, American Society of Civil Engineers concerns and conditions of a specific and compendiums of available (ASCE) to develop a scientifically-based watershed could reflect a watershed documents, including guidances, related management tool for the information

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68738 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations needed to evaluate the effectiveness of the database, which includes data entry To obtain a copy of the database, urban storm water runoff BMPs and retrieval software, is available on please contact Jane Clary, Database nationwide. The long-term goal of the CD–ROM and operates on Windows- Clearinghouse Manager, Wright Water National Stormwater BMP Database compatible personal computers. The Engineers, Inc., 2490 W. 26th Ave., project is to promote technical design ASCE project team envisions that Suite 100A, Denver, CO 80211; Phone improvements for BMPs and to better periodic updates to the database will be 303–480–1700; E-mail match their selection and design to the distributed through the Internet. The [email protected]. local storm water problems being team is currently developing a system In addition, EPA requests that addressed. The project team has for Internet retrieval of selected database researchers planning to conduct BMP collected and evaluated hundreds of records, and this system is expected to performance evaluations compile and existing published BMP performance be available in early 2000. collect BMP reporting information studies and created a database covering according to the standard format about 75 test sites. The database EPA and ASCE invite BMP designers, includes detailed information on the owners and operators to participate in developed by ASCE. The format is design of each BMP and its watershed the continuing database development provided with the database software and characteristics, as well as its effort. To make this effort successful, a is also available on the ASCE website at performance. Eventually the database large database is essential. Interested www.asce.org/peta/tech/nsbd01.html. will include the nationwide collection persons are encouraged to submit their 6. Deadlines Established in Today’s of information on the characteristics of BMP performance evaluation data and Action structural and non-structural BMPs, associated BMP watershed data collection efforts (e.g., sampling characteristics for potential entry into Exhibit 2 outlines the various and flow gaging equipment), the database. The software included in deadlines established under today’s climatological characteristics, watershed the CD-ROM allows data providers to final rule. EPA believes that the dates characteristics, hydrologic data, and enter their BMP data locally, retain and allow sufficient time for completion of constituent data. The database will edit the data as needed, and submit both the NPDES permitting authority’s continue to grow as new BMP data them to the ASCE Database and the permittee’s program become available. The initial release of Clearinghouse when ready. responsibilities.

EXHIBIT 2±STORM WATER PHASE II ACTIONS DEADLINES

Activity Deadline date

NPDES-authorized States modify NPDES program if no statutory 1 year from date of publication of today's rule in the Federal Register. change is required. NPDES-authorized States modify NPDES program if statutory change 2 years from date of publication of today's rule in the Federal Reg- is required. ister. EPA issues a menu of BMPs for regulated small MS4s ...... October 27, 2000 ISTEA sources submit permit application ...... 3 years and 90 days from date of publication of today's rule in the Fed- eral Register. Permitting authority issues general permit(s) (if this type of permit cov- 3 years from date of publication of today's rule in the Federal Reg- erage is selected). ister. Regulated small MS4s submit permit application: a. If designated under § 122.32(a)(1) unless the permitting author- a. 3 years and 90 days from date of publication of today's rule in the ity has established a phasing schedule under § 123.35(d)(3). Federal Register. b. If designated under § 122.32(a)(2) or §§ 122.26(a)(9)(i) (C) or b. Within 180 days of notice. (D). Storm water discharges associated with small construction activity sub- mit permit application: a. If designated under § 122.26(b)(15)(i) ...... a. 3 years and 90 days from date of publication of today's rule in the Federal Register b. If designated under § 122.26(b)(15)(ii) ...... b. Within 180 days of notice. Permitting authority designates small MS4s under § 123.35(b)(2) ...... 3 years from date of publication of today's rule in the Federal Register or 5 years from date of publication of today's rule in the Federal Register if a watershed plan is in place Regulated small MS4s' program fully developed and implemented ...... Up to 5 years from date of permit issuance. Reevaluation of the municipal storm water rules by EPA ...... 13 years from date of publication of today's rule in the Federal Reg- ister Permitting authority determination on a petition ...... Within 180 days of receipt. Non-municipal sources designated under § 122.26(a)(9)(i) (C) or (D) Within 180 days of notice. submit permit application. Submission of No Exposure Certification ...... Every 5 years.

B. Readable Regulations questions and answers, ‘‘you’’ to Some sections of today’s final rule are identify the person who must comply, presented in the traditional language Today, EPA is finalizing new regulations in a ‘‘readable regulation’’ and terms like ‘‘must’’ rather than and format because these sections format. This reader-friendly, plain ‘‘shall’’ to identify a mandate. This new amend existing regulations. The language approach is a departure from format, which minimizes layers of readable regulation format was not used traditional regulatory language and subparagraphs, should also allow the in these existing provisions in an should enhance the rule’s readability. reader to easily locate specific attempt to avoid confusion or disruption These plain language regulations use provisions of the regulation.

VerDate 29-OCT-99 18:53 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68739 of the readability of the existing Act section 402(p)(6) as authorizing the smaller MS4s to optimize efforts to regulations. Agency to develop a storm water protect water quality. Most commenters supported EPA’s program for Phase II sources either as Today’s rule also applies NPDES use of plain language and agreed with part of the existing NPDES permit permit requirements to construction EPA that the question and answer program or as a stand alone non-NPDES sites below 5 acres that are similar to the format makes the rule easier to program such as a self-implementing existing requirements for those 5 acres understand. Three commenters thought rule. Under either approach, EPA and above. In addition, the rule would that EPA should retain the traditional interprets section 402(p)(6) as directing allow compliance with qualifying local, rule format. The June 1, 1998, EPA to publish regulations that Tribal, or State erosion and sediment Presidential memorandum directs all ‘‘regulate’’ the remaining unregulated controls to meet the erosion and government agencies to write sources, specifically to establish sediment control requirements of the documents in plain language. Based on requirements that are federally general permits for storm water the majority of the comments, EPA has enforceable under the CWA. Although discharges associated with construction, retained the plain language format used EPA believes that it has the discretion both above and below 5 acres. in the January 9, 1998, proposal in to not require sources regulated under Incorporating the CWA section today’s final rule. CWA section 402(p)(6) to be covered by 402(p)(6) program into the NPDES The proposal to today’s final rule NPDES permits, the Agency has program capitalizes upon the existing included guidance as well as legal determined, for the reasons discussed governmental infrastructure for requirements. The word ‘‘must’’ below, that it is most appropriate to use administration of the NPDES program. indicates a requirement. Words like NPDES permits in implementing the Moreover, much of the regulated ‘‘should,’’ ‘‘could,’’ or ‘‘encourage’’ program to address the sources community already understands the indicate a recommendation or guidance. designated for regulation in today’s rule. NPDES program and the way it works. In addition, the guidance was set off in As discussed in Section II.A, Another goal of the NPDES program parentheses to distinguish it from Overview, EPA sought to achieve approach is to provide flexibility in requirements. EPA received numerous comments certain goals in today’s final rule. EPA order to facilitate and promote supporting the inclusion of guidance in believes that the NPDES program best watershed planning and sensitivity to the text of the Code of Federal achieves EPA’s goals for today’s final local conditions. NPDES permits Regulations (CFR), as well as comments rule for the reasons discussed below. promote those goals in several ways. opposing inclusion of guidance. Requiring Phase II sources to be NPDES general permits may be used to Supporters stated that preambles and covered by NPDES permits helps cover a category of regulated sources on guidance documents are often not address the consistency problems a watershed basis or within political accessible when rules are implemented. currently caused by municipal ‘‘donut boundaries. The NPDES permitting Any language not included in the CFR holes.’’ Donut holes are gaps in program process provides a mechanism for storm is therefore not available when it may be coverage where a small unregulated water controls tailored on a case-by-case most needed. Commenters that opposed MS4 is located next to or within a basis, where necessary. In addition, the including guidance in the CFR regulated larger MS4 that is subject to NPDES permit requirements of a expressed the concern that any language an NPDES permit under the Phase I permittee may be satisfied by another in the rule might be interpreted as a NPDES storm water program. The cooperating entity. Finally, NPDES requirement, in spite of any clarifying existence of such ‘‘donut holes’’ creates permits may incorporate the language. They suggested that guidance an equity problem because similar requirements of existing State, Tribal be presented in the preamble and discharges may remain unregulated and local programs, thereby additional guidance documents. even though they cause or contribute to accommodating State and Tribes The majority of commenters on this the same adverse water quality impacts. seeking to coordinate the storm water issue thought that the guidance should Using NPDES permits to regulate the program with other programs, including be retained but the distinction between unregulated discharges in these areas is those that focus on watershed-based requirements and guidance should be intended to facilitate the development nonpoint source regulation. better clarified. Suggestions included of a seamless regulatory program for the In promoting the watershed approach clarifying text, symbols, and a change mitigation and control of contaminated to program administration, EPA believes from use of the word ‘‘should’’ to ‘‘EPA storm water discharges in an urbanized NPDES general permits can cover a recommends’’ or ‘‘EPA suggests’’. EPA area. For example, today’s rule allows a category of dischargers within a defined believes that it is important to include newly regulated MS4 to join as a geographic area. Areas can be defined the guidance in the rule and agrees that ‘‘limited’’ co-permittee with a regulated very broadly to include political the distinction between requirements MS4 by referencing a common storm boundaries (e.g., county), watershed and EPA recommendations must be very water management program. Such boundaries, or State or Tribal land. clear. In today’s final rule, EPA has put cooperation should be further NPDES permits generally require an the guidance in paragraphs entitled encouraged by the fact that the application or a notice of intent(NOI) to ‘‘Guidance’’ and replaced the word minimum control measures required in trigger coverage. This information ‘‘should’’ with ‘‘EPA recommends.’’ today’s rule for regulated small MS4s exchange assures communication This is intended to clarify that the are very similar to a number of the between the permitting authority and recommendations contained in the permit requirements for medium and the regulated community. This guidance paragraphs are not legally large MS4s under the Phase I storm communication is critical in ensuring binding. water program. The minimum control that the regulated community is aware measures applicable to discharges from of the requirements and the permitting C. Program Framework: NPDES smaller MS4s are described with authority is aware of the potential for Approach slightly more generality than under the adverse impacts to water quality from Today’s rule regulates Phase II Phase I permit application regulations identifiable locations. The NPDES sources using the NPDES permit for larger MS4s, thus enabling permitting process includes the public program. EPA interprets Clean Water maximum flexibility for operators of as a valuable stakeholder and ensures

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The NPDES some stakeholders in having a programs not based on the CWA that are approach ensures opportunities for streamlined program that minimizes the effective in controlling storm water, and citizen participation throughout the burden associated with permit that EPA should provide incentives for permit issuance process, as well as in administration and maximizes their implementation and improvement enforcement actions. NPDES permits are opportunities for field time spent by in performance. also federally enforceable under the regulatory authorities. Key provisions in Throughout the development of the CWA. today’s rule address some of these rule, State representatives sought EPA believes that the use of NPDES concerns by promoting a streamlined alternatives to the NPDES approach for permits makes a significant difference in approach to permit issuance by, for State implementation of the storm water the degree of compliance with example, using general permits and program for Phase II sources. regulations in the storm water program. allowing the incorporation of existing Discussions focused on an approach The NPDES program provides for public programs. By adopting the NPDES whereby States could develop an participation in the development, approach rather than a self- alternative program that EPA would enforcement and revision of storm water implementing rule, today’s rule also approve or disapprove based on management programs. Citizen suit allows for consistent regulation between identified criteria, including that the enforcement has assisted in focusing larger MS4s and construction sites alternative non-NPDES program would attention on adverse water quality regulated under the existing storm water result in ‘‘equivalent or better protection impacts on a localized, public priority management rule and smaller sources of water quality.’’ The State basis. Citizens frequently rely on the regulated under today’s rule. representatives, however, were unable NPDES permitting process and the EPA believes that it is most to propose or recommend criteria for availability of NOIs to track program appropriate to use NPDES permits to gauging whether a program would implementation and help them enforce implement a program to address the provide equivalent protection. EPA also regulatory requirements. sources regulated by today’s rule. In did not receive any suggestions for NPDES permits are also advantageous addition to the reasons discussed above, objective, workable criteria in response to the permittee. The NPDES permit NPDES permits provide a better to the Agency’s explicit request for informs the permittee about the scope of mechanism than would a self- specific criteria (by which EPA could what it is expected do to be in implementing rule for tailoring storm objectively judge such programs) in the compliance with the Clean Water Act. water controls on a case-by-case basis, preamble to the proposed rule. As explained more fully in EPA’s April where necessary. One commenter EPA evaluated several existing State 1995 guidance, Policy Statement on reasoned this concern could be initiatives to address storm water and Scope of Discharge Authorization and addressed by including provisions in found many cases where standards Shield Associated with NPDES Permits, the regulation that allow site-specific under State programs may be compliance with an NPDES permit BMPs (i.e., case-by-case permits), coordinated with the Federal storm constitutes compliance with the Clean suggesting storm water discharges that water program. Where the NPDES Water Act (see CWA section 402(k)). In might require site-specific BMPs can be permit is developed in coordination addition, NPDES permittees are identified during the designation with State standards, there are excluded from duplicative regulatory process of the regulatory authority. EPA opportunities to avoid duplication and regimes under the Resource believes that, in addition to its overlapping requirements. Under Conservation and Recovery Act and the complexity, the commenter’s approach today’s rule, an NPDES permitting Comprehensive Emergency Response, lacks the other advantages of the NPDES authority may include conditions in the Compensation and Liability Act under permitting process. NPDES permit that direct an MS4 to RCRA’s exclusions to the definition of A self-implementing rule would not follow the requirements imposed under ‘‘solid waste’’ and CERCLA’s exemption ensure the degree of public participation State standards, rather than the for ‘‘federally permitted releases.’’ that the NPDES permit process provides requirements of § 122.34(b). This is EPA considered suggestions that the for the development, enforcement and allowed as long as the State program at Agency authorize today’s rule to be revision of the storm water management a minimum imposes the relevant implemented as a self-implementing program. A self-implementing rule also requirements of § 122.34(b). Additional rule. This would be a regulation might not have provided the regulated opportunities follow from other promulgated at the Federal, State, or community the ‘‘permit shield’’ under provisions in today’s rule. Tribal level to control some or all of the CWA section 402(k) that is provided by Seeking to further explore the storm water dischargers regulated under an NPDES permit. Based on all these feasibility of a non-NPDES approach, today’s rule. Under this approach, a rule considerations, EPA declined to adopt a the Agency, after the proposal, had would spell out the specific self-implementing rule approach and extensive discussions with requirements for dischargers and adopted the NPDES approach. representatives of a number of States. impose the restrictions and conditions Some State representatives sought Discussions related specifically to that would otherwise be contained in an alternative approaches for State possible alternatives for regulations of NPDES permit. It would be effective implementation of the storm water urban storm water discharges and MS4s until modified by EPA, a State, or a program for Phase II sources. These specifically. The Agency also sought Tribe, unlike an NPDES permit which State representatives asserted that a input on these issues from other cannot exceed a duration of five years. non-NPDES alternative approach best stakeholders. Some stakeholders believed that this facilitated watershed management and As a result of these discussions, many approach would reduce the burden on avoided duplication and overlapping of the commenters provided input on the regulated community (e.g., by not regulations. These representatives issues such as: whether or not the requiring permit applications), and believed the NPDES approach would Agency should require NPDES permits; considerably reduce the amount of undercut State programs that had whether location of MS4s in urbanized

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EPA is allowed to satisfy the conditions of the ‘‘comprehensive program.’’ Absence of fully committed to continuing to work rule through the use of existing State the word ‘‘permit’’ (a term that the with involved stakeholders on programs; and issues concerning timing statute does not otherwise define) does developing the tool box and issuing and resources for program not preclude use of a permit, which is permits. As noted in today’s rule, EPA implementation. a familiar and reasonably well will assess the municipal storm water In response, today’s rule still follows understood regulatory implementation program based on (1) evaluations of data the regulatory scheme of the proposed vehicle. First, section 402(p)(6) says that from the NPDES municipal storm water rule, but incorporates additional EPA must establish a comprehensive program, (2) research concerning water flexibility to address some of the program that ‘‘shall, at a minimum, quality impacts on receiving waters concerns raised by commenters. establish priorities, establish from storm water, and (3) research on In order to facilitate implementation requirements for State stormwater BMP effectiveness. (Section II.H, by States that utilize a watershed management programs, and establish Municipal Role, provides a more permitting approach or similar approach expeditious deadlines.’’ The ‘‘at a detailed discussion of this provision.) (i.e., based on a State’s unified minimum’’ language suggests that the EPA is planning to standardize watershed assessments), today’s rule Agency may, and perhaps should, minimum requirements for construction allows States to phase in coverage for develop a comprehensive program that and post-construction BMPs in a new MS4s in jurisdictions with a population does more than merely attend to these rulemaking under Title III of the CWA. less than 10,000. Under such an minimum criteria. Use of the term ‘‘at a While larger construction sites are approach, States could focus their minimum’’ preserves for the Agency already subject to NPDES permits (and resources on a rolling basis to assist broad discretion to establish a smaller sites will be subject to permits smaller MS4s in developing storm water comprehensive program that includes pursuant to today’s rule), the permits programs. use of NPDES permits. generally do not contain specific In addition, in response to concerns Further, in the final sentence of the requirements for BMP design or that the rule should not require permit section, Congress included additional performance. The permits require the coverage for MS4s that do not language to affirm the Agency’s preparation of storm water pollution significantly contribute to water quality discretion. The final sentence clarifies prevention plans, but actual BMP impairments, today’s rule provides that the Phase II program ‘‘may include selection and design is at the discretion options for two waivers for small MS4s. performance standards, guidelines, of permittees, in conformance with The rule allows permitting authorities to guidance, and management practices applicable State and local requirements. exempt from the requirement for a and treatment requirements, as Where there are existing State and local permit any MS4 serving a jurisdiction appropriate.’’ Under existing CWA requirements specific to BMPs, they with a population less than 1,000, programs, performance standards, vary widely, and many jurisdictions do unless the State determines that the (effluent limitations) guidelines, not have such requirements. MS4 must implement storm water management practices, and treatment In developing these regulations, EPA controls because it is significantly requirements are typically implemented intends to evaluate the inclusion of contributing to a water quality through NPDES or dredge and fill design and maintenance criteria as impairment. A second waiver option permits. minimum requirements for a variety of applies to MS4s serving a jurisdiction Although EPA believes that it had the BMPs used for erosion and sediment with a population less than 10,000. For discretion to not require permits, the control at construction sites, as well as those MS4s, the State must determine Agency has determined that it is for permanent BMPs used to manage that discharges from the MS4 do not reasonable to interpret section 402(p)(6) post-construction storm water significantly contribute to a water to authorize permits. Moreover, for the discharges. The Agency plans to quality impairment, or have the reasons discussed above, the Agency consider the merits and performance of potential for such an impairment, in believes that it is appropriate to use all appropriate management practices order to provide the exemption. The NPDES permits in implementing today’s (both structural and non-structural) that State must review this waiver on a rule. can be used to reduce adverse water periodic basis no less frequently than quality impacts. EPA does not intend to once every five years. D. Federal Role require the use of particular BMPs at Throughout the development of Today’s final rule describes EPA’s specific sites, but plans to assist today’s rule, commenters questioned approach to expand the existing storm builders and developers in BMP whether the Clean Water Act authorized water program under CWA section selection by publishing data on the the use of the NPDES permit program, 402(p)(6). As in all other Federal performance to be expected by various pointing out that the text of CWA programs, the Federal government plays BMP types. EPA would like to build 402(p)(6) does not use the word an integral role in complying with, upon the successes of some of the ‘‘permit.’’ Based on the absence of the developing, implementing, overseeing, effective State and local storm water word ‘‘permit’’ and the express mention and enforcing the program. This section programs currently in place around the of State storm water management describes EPA’s role in the revised country, and to establish nation-wide programs, the commenters asserted that storm water program. criteria to support builders and local Congress did not intend for Phase II jurisdictions in appropriate BMP 1. Develop Overall Framework of the sources to be regulated using NPDES selection. permits. Program EPA disagrees with the commenters’ The storm water discharge control 2. Encourage Consideration of Smart interpretation of section 402(p)(6). program under CWA section 402(p)(6) Growth Approaches Section 402(p)(6) does not preclude use consists of the rule, tool box, and In the proposal, EPA invited comment of permits as part of the permits. EPA’s primary role is to ensure on possible approaches for providing

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68742 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations incentives for local decision making that the Water Quality Cooperative Tribes to modify their programs where would limit the adverse impacts of Agreements under CWA section programmatic or implementation growth and development on water 104(b)(3), Water Pollution Control concerns impede program effectiveness. quality. EPA asked for comments on this Program grants to States under CWA This role will be vitally important when ‘‘smart growth’’ approach. section 106, and the Transportation States and Tribes make adjustments to EPA received comments on all sides Equity Act for the 21st Century (TEA– develop, implement, and enforce of this issue. A number of commenters 21) among others. In addition, Section today’s extension of the existing NPDES supported the idea of ‘‘smart growth’’ 319 funds may be used to fund any storm water discharge control program. incentives but did not present concrete urban storm water activities that are not In addition, States maintain a ideas. Several commenters suggested specifically required by a draft or final continuing planning process (CPP) ‘‘smart growth’’ criteria. States that have NPDES permit. EPA will develop a list under CWA section 303(e), which EPA adopted ‘‘smart growth’’ laws were of potential funding sources as part of periodically reviews to assess the worried that EPA’s focus on urbanized the tool box implementation effort. EPA program’s achievements. areas for municipal requirements could anticipates that some of these programs In its oversight role, EPA takes action encourage development outside of will provide funds to help develop and, to address States and Tribes who have designated growth areas. Today’s final in limited circumstances, implement the obtained NPDES authorization but are rule clearly allows States to expand CWA section 402(p)(6) storm water not fulfilling their obligations under the coverage of their municipal storm water discharge control program. NPDES program. If an NPDES- program outside of urbanized areas. In EPA received numerous comments authorized State or Tribe fails to addition, the flexibility of the six that requested additional funding. implement an adequate NPDES storm municipal minimum measures should Congress provided one substantial new water program, for example, EPA avoid encouragement of development source of potential funding for typically enters into extensive into rural rather than urban areas. For transportation related storm water discussions to resolve outstanding example, as part of the post- projects—TEA–21. The Department of issues. EPA has the authority to construction minimum measure, EPA Transportation has included a number withdraw the entire NPDES program recommends that municipalities of water-related provisions in its TEA– when resolution cannot be reached. consider policies and ordinances that 21 planning. These include Partial program withdrawal is not encourage infill development in higher Transportation Enhancements, provided for under the CWA except for density urban areas, and areas with Environmental Restoration and partial approvals. existing infrastructure, in order to meet Pollution Abatement, and EPA is also working with the States the measure’s intent. Environmental Streamlining. More and Tribes to improve nonpoint source EPA also received several comments information on TEA–21 is available at management programs and assessments expressing concern that incorporating the following internet sites: to incorporate key program elements. ‘‘smart growth’’ incentives threatened www.fhwa.dot.gov/tea21/outreach.htm Key nonpoint source program elements the autonomy of local governments. One and www.tea21.org. include setting short and long term commenter was worried that goals and objectives; establishing public ‘‘incentives’’ could become more 4. Implement the Program in and private partnerships; using a onerous than the minimum measures. Jurisdictions Not Authorized To balanced approach incorporating EPA is very aware of municipal Administer the NPDES Program Statewide and watershed-wide concerns about possible federal Because today’s final rule uses the abatement of existing impairments; interference with local land use NPDES framework, EPA will be the preventing future impairments; planning. EPA is also cognizant of the NPDES permitting authority in several developing processes to address both difficulty surrounding incentives for States, Tribal jurisdictions, and impaired and threatened waters; ‘‘smart growth’’ activities due to these Territories. As such, EPA will have the reviewing and upgrading all program concerns. However, the Agency believes same responsibilities as any other components, including program it has addressed these concerns by NPDES permitting authority—issuing revisions on a 5-year cycle; addressing proposing a flexible approach and will permits, designating additional sources, federal land management and activities continue to support the concept of and taking appropriate enforcement inconsistent with State programs; and ‘‘smart growth’’ by encouraging policies actions—and will seek to tailor the managing State nonpoint source that limit the adverse impacts of growth storm water discharge control program management programs effectively. and development on water quality. to the specific needs in that State, Tribal In particular, EPA works with the jurisdiction, or Territory. EPA also plans States and Tribes to strengthen their 3. Provide Financial Assistance to provide support and oversight, nonpoint source pollution programs to Although Congress has not including outreach, training, and address all significant nonpoint sources, established a fund to fully finance technical assistance to the regulated including agricultural sources, through implementation of the proposed communities. Section II.G. of today’s the CWA section 319 program. EPA is extension of the existing NPDES storm preamble provides a separate discussion working with other government water program under CWA section related to the NPDES permitting agencies, as well as with community 402(p)(6), numerous federal financing authority’s responsibilities for today’s groups, to effect voluntary changes programs (administered by EPA and final rule. regarding watershed protection and other federal agencies) can provide reduced nonpoint source pollution. some financial assistance. The primary 5. Oversee State and Tribal Programs In addition, EPA and NOAA have funding mechanism is the Clean Water Under the NPDES program, EPA plays published programmatic and technical State Revolving Fund (SRF) program, an oversight role for NPDES-approved guidance to address coastal nonpoint which provides sources of low-cost States and Tribes. In this role, EPA and source pollution. Under Section 6217 of financing for a range of water quality the State or Tribe work together to the CZARA, States are developing and infrastructure projects, including storm implement, enforce, and improve the implementing coastal nonpoint water. In addition to the SRF, federal NPDES program. Part of this oversight pollution control programs approved by financial assistance programs include role includes working with States and EPA and NOAA.

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6. Comply With Applicable Where States do not have NPDES municipal and private sector facilities Requirements as a Discharger authority, they are not required to and implement or test state-of-the-art Today’s final rule covers federally implement the storm water discharge management practices and control operated facilities in a variety of ways. control program, but they may still measures. participate in water quality protection These facilities are generally areas 3. Communicate With EPA where people reside, such as a federal through participation in the CWA prison, hospital, or military base. It also section 401 certification process (for any Under approved NPDES programs, includes federal parkways and road permits) and through development of States have an ongoing obligation to water quality standards and TMDLs. systems with separate storm sewer share information with EPA. This systems. Today’s rule requires federal 1. Develop the Program dialogue is particularly important in the CWA section 402(p)(6) storm water MS4s to comply with the same In expanding the existing NPDES application deadlines that apply to program where these governments program for storm water discharges, continue to develop a great deal of the regulated small MS4s generally. EPA States must evaluate whether revisions believes that all federal MS4s serve guidance and outreach related to water to their NPDES programs are necessary. quality. populations of less than 100,000. If so, modifications must be made in EPA received several comments that accordance with § 123.62. Under F. Tribal Role asked if individual buildings like post § 123.62, States must revise their NPDES The proposal to today’s final rule offices are considered to be small MS4s programs within 1 year, or within 2 and thereby regulated in today’s rule if provides background information on years if statutory changes are necessary. EPA’s 1984 Indian Policy and the they are in an urbanized area. Most of Some States and departments of criteria for treatment of an Indian Tribe these buildings have at most a parking transportation (DOTs) commented that in the same manner as a State. Today’s lot with runoff or a storm sewer that this timeframe is too short, anticipating final rule extends the existing NPDES connects with a municipality’s MS4. that the State legislative process and the program for storm water discharges to EPA does not intend that individual modification of regulations combined federal buildings be considered to be would take beyond 2 years. The two types of dischargers located in small MS4s. This is discussed in section deadline language in § 123.62 is not new Indian country. First, the final rule II.H.2.b. of today’s preamble. language for the storm water discharge designates storm water discharges from Federal facilities can also be included control program; it applies to all NPDES any regulated small MS4, including under requirements addressing storm programs. EPA believes the vast Tribal systems. Second, the final rule water discharges associated with small majority of States will meet the deadline regulates discharges associated with construction activities. In any case, and will work with States in those cases construction activity disturbing between discharges from these facilities will where there may be difficulty meeting one and five acres of land, including need to comply with all applicable this deadline due to the timing of sites located in Indian country. NPDES requirements and any additional legislative sessions and the regulatory Operators in each of these categories of water quality-related requirements development process. regulated activity must apply for imposed by a State, Tribal, or local An authorized State NPDES program coverage under an NPDES permit by 3 government. Failure to comply can must meet the requirements of CWA years and 90 days from the date of result in enforcement actions. Federal section 402(b) and conform to the publication of today’s final rule. Under facilities can act as models for guidelines issued under CWA section existing regulations, however, EPA or an municipal and private sector facilities 304(i)(2). Today’s final rule under authorized NPDES Tribe may require a and implement or test state-of-the-art § 123.25 adds specific cross references specified storm water discharger to management practices and control to the storm water discharge control apply for NPDES permit coverage before measures. program components to ensure that this deadline based on a determination that the discharge is contributing to a E. State Role States adequately address these requirements. violation of a water quality standard Today’s final rule sets forth an NPDES (including designated uses) or is a approach for implementing the 2. Comply With Applicable significant contributor of pollutants. extension of the existing storm water Requirements as a Discharger Under today’s rule, a Tribal discharge control program under CWA Today’s final rule covers State governmental entity may regulate storm section 402(p)(6). State assumption of operated separate storm sewer systems water discharges on its reservation in the NPDES program is voluntary, in a variety of ways. These systems two ways—as either an NPDES- consistent with the principles of generally drain areas where people authorized Tribe or as a regulated MS4. federalism. Because most States are reside, such as a prison, hospital, or If a Tribe is authorized to operate the approved to implement the NPDES other populated facility. These systems NPDES program, the Tribe must program, they will tailor their storm are included under the definition of a implement today’s final rule for the water discharge control programs to regulated small MS4, which specifically NPDES program for storm water for address their water quality needs and identifies systems operated by State covered dischargers located within the objectives. While today’s rule departments of transportation. EPA recognized boundaries. Otherwise, establishes the basic framework for the Alternatively, storm water discharges EPA is generally the permitting/program section 402(p)(6) program, States as well from State activities may be regulated authority within Indian country. as Tribes (see discussion in section II.F) under the section addressing storm Discussions about the State Role in the have an important role in fine-tuning water discharges associated with small preceding section also apply to NPDES the program to address the water quality construction activities. In any case, authorized Tribes. For additional issues within their jurisdictions. The discharges from these facilities must information on the role and basic framework allows for adjustments comply with all applicable NPDES responsibilities of the permitting based on factors that vary requirements. Failure to comply can authority in the NPDES storm water geographically, including climate result in enforcement actions. State program, see § 123.35 (and Section II.G. patterns and terrain. facilities can act as models for of today’s preamble) and § 123.25(a).

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Under today’s final rule, if the Indian NPDES program. Section 123.35 focuses EPA believes that permitting reservation is located entirely or on specific issues related to the role of authorities should consider the partially within an ‘‘urbanized area,’’ as the NPDES authority to support potential water quality impacts of storm defined in § 122.32(a)(1), the Tribe must administration and implementation of water from all jurisdictions with a obtain an NPDES permit if it operates a the municipal storm water program population of 10,000 or greater and a small MS4 within the urbanized area under CWA section 402(p)(6). density of 1,000 people per square mile. portion. Tribal MS4s located outside an EPA is using data summarized in the urbanized area are not automatically 2. Designate Sources NURP study and in the CWA section covered, but may be designated by EPA Section 123.35(b) of today’s final rule 305(b) reports to support this approach pursuant to § 122.32(a)(2) of today’s rule addresses the requirements for the for targeted designation outside of or may request designation as a NPDES permitting authority to urbanized areas. EPA is not mandating regulated small MS4 from EPA. A Tribe designate sources of storm water which criteria are to be used, but has that is a regulated MS4 for NPDES discharges to be regulated under provided examples of criteria that may program purposes is required to §§ 122.32 through 122.36. NPDES be useful in evaluating potential water implement the six minimum control permitting authorities must develop a quality impacts. EPA believes that the measures to the extent allowable under process, as well as criteria, to designate flexibility provided in this section of Federal law. small MS4s. They must also have the today’s final rule allows the permitting The Tribal representative on the authority to designate a small MS4 if authority to develop criteria and a Storm Water Phase II FACA and when circumstances that support a designation process that is easy to use Subcommittee asked EPA to provide a waiver under § 122.32(c) change. EPA and protects water quality. Therefore, list of the Tribes located in urbanized may make designations if an NPDES- the provisions of § 123.35(b) remain as areas that would fall within the NPDES approved State or Tribe fails to do so. proposed. storm water program under today’s final NPDES permitting authorities must a. Develop Designation Criteria rule. In December 1996, EPA developed examine geographic jurisdictions that Under § 123.35(b), the NPDES a list of federally recognized American they believe should be included in the permitting authority must establish Indian Areas located wholly or partially storm water discharge control program designation criteria to evaluate whether in Bureau of the Census-designated but are not located in an ‘‘urbanized a storm water discharge results in or has urbanized areas (see Appendix 1). area’’. Small MS4s in these areas are not Appendix 1 not only provides a listing the potential to result in exceedances of designated automatically. Discharges water quality standards, including of reservations and individual Tribes, from such areas should be brought into but also the name of the particular impairment of designated uses, or other the program if found to have actual or significant water quality impacts, urbanized area in which the reservation potential exceedances of water quality is located and an indication of whether including adverse habitat and biological standards, including impairment of impacts. the urbanized area contains a medium designated uses, or other adverse or large MS4 that is already covered by EPA recommends that NPDES impacts on water quality, as determined permitting authorities consider, in a the existing Phase I regulations. by local conditions or watershed and Some of the Tribes listed in Appendix balanced manner, certain locally- TMDL assessments. EPA’s aim is to 1 are only partially located in an focused criteria for designating any MS4 address discharges to impaired waters urbanized area. If the Tribe’s MS4 serves located outside of an urbanized area on and to protect waters with the potential less than 1,000 people within an the basis of significant water quality for problems. EPA encourages NPDES urbanized area, the permitting authority impacts. EPA recommends permitting authorities, local may waive the Tribe’s MS4 storm water consideration of criteria such as governments, and the interested public requirements if it meets the conditions discharge to sensitive waters, high to work together in the context of a of § 122.32(c). EPA does not have growth or growth potential, high watershed plan to address water quality information on the Tribal populations population density, contiguity to an issues, including those associated with within the urbanized areas, so it can not urbanized area, significant contribution municipal storm water runoff. identify the Tribes that are eligible for of pollutants to waters of the United a waiver. Therefore, a Tribe that EPA received comments stating that States, and ineffective control of water believes it qualifies for a waiver should the process of developing criteria and quality concerns by other programs. contact its permitting authority. applying it to all MS4s outside an These suggested designation criteria are urbanized area serving a population of intended to help encourage the G. NPDES Permitting Authority’s Role 10,000 or greater and with a density of permitting authority to use an objective for the NPDES Storm Water Small MS4 1,000 people per square mile is too method for identifying and designating, Program time-consuming and resource-intensive. on a local basis, sources that adversely As noted previously, the NPDES These commenters believe that the impact water quality. More information permitting authority can be EPA or an permitting authority should decide about these criteria and the reasons why authorized State or an authorized Tribe. which MS4s must be brought into the they are suggested by EPA is included The following discussion describes the storm water discharge control program in the January 9, 1998, proposal (63 FR role of the NPDES permitting authority and that population and density should 1561) for today’s final rule. under today’s final rule. not be an overriding criteria. One The suggested criteria are meant to be suggested way of doing so was to only taken in the aggregate, with a great deal 1. Comply With Implementation designate MS4s with demonstrated of flexibility as to how each should be Requirements contributions to the impairment of weighed in order to best account for NPDES permitting authorities must water quality uses as shown by a TMDL. watershed and other local conditions perform certain duties to implement the EPA disagrees with this suggestion. The and to allow for a more tailored case-by- NPDES storm water municipal program. TMDL process is time-consuming. MS4s case analysis. The application of criteria Section 123.35(a) of today’s final rule outside of urbanized areas may cause is meant to be geographically specific. emphasizes that permitting authorities water quality problems long before a Furthermore, each criterion does not have existing obligations under the TMDL is completed. have to be met in order for a small MS4

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If an NPDES-authorized Today’s final rule does not include EPA believes that the application of State or Tribe does not develop and interim deadlines for identifying the recommended designation criteria apply designation criteria within this physically interconnected MS4s. provides an objective indicator of real timeframe, then EPA has the However, consistent with the deadlines and potential water quality impacts opportunity to do so in lieu of the identified in § 123.35(b)(3) of today’s from urban runoff on both the local and authorized State or Tribe. final rule, EPA encourages the watershed levels. EPA encourages the NPDES permitting authorities can permitting authority to make these application of the recommended criteria designate any small MS4, including one determinations within 3 years from the in a watershed context, thereby allowing below 10,000 in population and 1,000 in date of publication of the final rule or for the evaluation of the water quality density. EPA established the 10,000/ within 5 years if the permitting impacts of the portions of a watershed 1,000 threshold based on the likelihood authority is implementing a outside of an urbanized area. For of adverse water quality impacts at these comprehensive watershed plan. example, situations exist where the population and density levels. In Alternatively, the affected jurisdiction urbanized area represents a small addition, the 1,000 persons per square could use the petition process under 40 portion of a degraded watershed, and mile threshold is consistent with both CFR 122.26(f) in seeking to have the the adjacent nonurbanized areas of the the Bureau of the Census definition of permitting authority designate the watershed have significant cumulative an ‘‘urbanized area’’ (see Section II.H.2. contributing jurisdiction. effects on the quality of the receiving below) and stakeholder discussions Several commenters expressed waters. concerning the definition of a regulated concerns about who could be designated under this provision (§ 123.35(b)(4)). EPA received numerous suggestions small MS4. of additional criteria that should be One commenter requested that the word added and reasons why some of the One commenter requested that EPA ‘‘substantially’’ be deleted from the rule criteria in the proposal to today’s final develop interim deadlines for because they believe any MS4 that rule were not appropriate. EPA development of designation criteria. contributes at all to a physically developed its suggested designation EPA believes that the designation interconnected municipal separate criteria based on findings of the NURP deadline identified in today’s final rule storm sewer should be regulated. EPA study and other studies that indicate at § 123.35(b)(3) provides States and believes that the word ‘‘substantially’’ pollutants of concern, including total Tribes with a flexibility that allows provides necessary flexibility to the suspended solids, chemical oxygen them to develop and apply the criteria permitting authorities. The permitting demand, and temperature. These criteria locally in a timely fashion, while at the authority can decide if an MS4 is were the subject of considerable same time establishing an expeditious contributing discharges to another discussion by the Storm Water Phase II deadline. municipal separate storm sewer in a FACA Subcommittee. EPA developed c. Designate Physically Interconnected manner that requires regulation. If the them in response to recommendations Small MS4s operator of a regulated municipal from the subcommittee during separate storm sewer believes that some development of the proposed rule. The In addition to applying criteria on a of its pollutant loadings are coming listed criteria are only suggestions. local basis for potential designation, the from an unregulated MS4, it can Permitting authorities are required to NPDES permitting authority must petition the permitting authority to develop their own criteria. EPA has not designate any MS4 that contributes designate the unregulated MS4 for found any reason to change its substantially to the pollutant loadings of regulation. suggested list of criteria and the a physically interconnected municipal d. Respond to Public Petitions for suggestions remain as proposed. separate storm sewer that is regulated by the NPDES program for storm water Designation b. Apply Designation Criteria discharges (see § 123.35(b)(4)). To be Today’s final rule reiterates the After customizing the designation ‘‘physically interconnected,’’ the MS4 of existing opportunity for the public to criteria for local conditions, the one entity, including roads with petition the permitting authority for permitting authority must apply such drainage systems and municipal streets, designation of a point source to be criteria, at a minimum, to any MS4 is physically connected directly to the regulated to protect water quality. The located outside of an urbanized area municipal separate storm sewer of petition opportunity also appears in serving a jurisdiction with a population another entity. This provision applies to existing NPDES regulations at 40 CFR of at least 10,000 and a population all MS4s located outside of an 122.26(f). Any person may petition the density of 1,000 people per square mile urbanized area. EPA added this section permitting authority to require an or greater (see § 123.35(b)(2)). If the in recognition of the concerns of local NPDES permit for a discharge composed NPDES permitting authority determines government stakeholders that a local entirely of storm water that contributes that an MS4 meets the criteria, the government should not have to shoulder to a violation of a water quality standard permitting authority must designate it as total responsibility for a storm water or is a significant contributor of a regulated small MS4. This designation program when storm water discharges pollutants to the waters of the United must occur within 3 years of publication from another MS4 are also contributing States (see § 123.32(b)). The NPDES of today’s final rule. Alternatively, the pollutants or adversely affecting water permitting authority must make a final NPDES authority can designate within 5 quality. This provision also helps to determination on any petition within years from the date of final regulation if provide some consistency among MS4 180 days after receiving the petition (see the designation criteria are applied on a programs and to facilitate watershed § 123.35(c)). EPA believes that a 180 day watershed basis where a comprehensive planning in the implementation of the limit balances the public’s need for a watershed plan exists (a comprehensive NPDES storm water program. EPA timely final determination with the watershed plan is one that includes the recommended physical NPDES permitting authority’s need to equivalents of TMDLs) (see interconnectedness in the existing prioritize its workload. If an NPDES- § 123.35(b)(3)). The extended 5 year NPDES storm water regulations as a approved State or Tribe fails to act

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Involvement/Public Role, further today’s rule, NPDES permitting The proposed rule would have discusses this topic. authorities may waive the requirements required the operator of the small MS4 of today’s rule for any small MS4 with serving a population under 1,000 to 3. Provide Waivers a population less than 1,000 that does certify that its discharge was covered Today’s rule provides two not contribute substantially to the under a TMDL that indicated that opportunities for the NPDES permitting pollutant loadings of a physically discharges from its particular system authority to exempt certain small MS4s interconnected MS4, unless the small were not having an adverse impact on from the need for a permit based on MS4 discharges pollutants that have water quality (i.e., it was either not water quality considerations. See been identified as a cause of impairment assigned wasteload allocations under §§ 122.32(d) and (e). The two waiver of the waters to which the small MS4 TMDLs or its discharge is within an opportunities have different size discharges. If the small MS4 does assigned allocation). Many commenters thresholds and take different discharge pollutants that have been expressed concerns that MS4 operators approaches to considering the water identified as impairing the water body serving less than 1,000 persons may lack quality impacts of discharges from the into which the small MS4 discharges, the technical capacity to certify that MS4. the NPDES permitting authority may their discharges are not contributing to In the proposal, EPA requested grant a waiver only if it determines that adverse water quality impacts. These comment on the option of waiving storm water controls are not needed commenters thought that the permitting coverage for all MS4s with less than based on an EPA approved or authority should make such a 1,000 people unless the permitting established TMDL that addresses the certification. Today’s rule provides authority determined that the small pollutant(s) of concern. flexibility as to how the waiver is MS4 should be regulated based on Unlike the proposed rule, § 122.32(d) administered. Permitting authorities are significant adverse water quality does not allow the waiver for MS4s ultimately responsible for granting the impacts. A number of commenters serving a population under 1,000 to be waiver, but are free to determine supported this option. They expressed based on ‘‘the equivalent of a TMDL.’’ whether or not to require small MS4 concern that compliance with the rule Because § 122.32(d) requires a pollutant operators that are seeking waivers to requirements and certification of one of specific analysis only for a pollutant submit information or a written the waiver provisions were both costly that has been identified as a cause of certification. for very small communities. They stated impairment, a TMDL is required for Under § 122.32(e) a State may grant a that the permitting authority should such pollutant before the waiver may be waiver to an MS4 serving a population identify a water quality problem before granted. Once a pollutant has been between 1,000 and 10,000 only if the requiring compliance. Today’s rule identified as the cause of impairment of State has made a comprehensive effort essentially adopts this alternative a water body, the State should develop to ensure that the MS4 will not cause or approach for MS4s serving a population a TMDL for that pollutant for that water contribute to water quality impairment. under 1,000. body. Thus, § 122.32(d) takes a different To grant a § 122.32(e) waiver, the The final rule has expanded the approach than that taken for the waiver NPDES permitting authority must waiver provision that EPA proposed for in § 122.32(e) for MS4s serving a evaluate all waters of the U.S. that small MS4s with a population less than population under 10,000, which can be receive a discharge from the MS4 and 1,000. The proposed rule would have based upon an analysis that is ‘‘the determine that storm water controls are required a small MS4 operator to certify equivalent of a TMDL.’’ This is because not needed. The permitting authority’s that storm water controls are not needed § 122.32(d) requires an analysis to evaluation must be based on wasteload based on either wasteload allocations support the waiver for MS4s under allocations that are part of an EPA that are part of TMDLs that address the 1,000 only if a waterbody to which the approved or established TMDL or, if a pollutants of concern, or a MS4 discharges has been identified as TMDL has not been developed or comprehensive watershed plan impaired. The § 122.32(e) waiver, on the approved, an equivalent analysis that implemented for the waterbody that other hand, would be available for larger determines sources and allocations for includes the equivalents of TMDLs and MS4s but only after the State the pollutant(s) of concern. The addresses the pollutant(s) of concern. affirmatively establishes lack of pollutants of concern that the permitting Commenters noted that the proposed impairment based upon a authority must evaluate include waivers would be unattainable if a comprehensive analysis of smaller biochemical oxygen demand (BOD), TMDL or equivalent analysis was urban waters that might not otherwise sediment or a parameter that addresses required for every pollutant that could be evaluated for the purposes of CWA sediment (such as total suspended possibly be present in any amount in section 303. Since § 122.32(e) requires solids, turbidity or siltation), pathogens, discharges from an MS4 regardless of the analysis of waters that have not been oil and grease, and any other pollutant whether the pollutant is causing water identified as impaired, an actual TMDL that has been identified as a cause of quality impairment. Commenters asked is not required and an analysis that is impairment of any water body that will that EPA identify what constitutes the the equivalent of a TMDL can suffice to receive a discharge from the MS4. ‘‘pollutant(s) of concern’’ for which a support the waiver. Finally, the permitting authority must TMDL or its equivalent must be Where a State is the NPDES have determined that future discharges developed. For example, § 122.30(c) permitting authority, the permitting from the MS4 do not have the potential indicates that the MS4 program is authority is responsible for the to result in exceedances of water quality intended to control ‘‘sediment, development of the TMDLs as well as standards, including impairment of suspended solids, nutrients, heavy the assessment of the extent to which a designated uses, or other significant

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The § 122.32(e) waiver would not be allowed for any measures in an NPDES small MS4 storm waiver was developed in response to system ‘‘contributing to the storm water water permit. For example, the permit comments, including States’ concerns pollutant loadings of a physically might acknowledge the existence of a that they needed greater flexibility to interconnected regulated MS4.’’ As State administered program that focus their efforts on MS4s that were previously mentioned under the addresses construction site runoff and causing water quality impairment. designation discussion of section require that the municipalities only Several commenters thought that the II.G.2.c, EPA believes that the word develop substantive controls for the threshold should be increased from ‘‘substantially’’ provides needed remaining minimum control measures. 1,000 to 5,000 or 10,000. Others flexibility to the permitting authorities. By acknowledging existing programs, suggested additional ways of qualifying It is important to note that this is only this provision is meant to reduce the for a waiver for MS4s that discharge to one aspect that the permitting authority duplication of efforts and to increase the waters that are not covered by a TMDL must consider when deciding on the flexibility of the NPDES storm water or watershed plan. EPA carefully appropriateness of a waiver. program. Section 123.35(e) of today’s final rule considered all the options for expanding 4. Issue Permits the waiver provisions and has decided requires permitting authorities to to expand the waiver only in the very NPDES permitting authorities have a specify a time period of up to 5 years narrow circumstances described above number of responsibilities regarding the from the issuance date of an NPDES permit for regulated small MS4 where a comprehensive analysis has permit process. Sections 123.35(d) operators to fully develop and been undertaken to demonstrate that the through (g) ensure a certain level of implement their storm water programs. MS4 is not causing water quality consistency for permits, yet provide As discussed more fully below, impairment. numerous opportunities for flexibility. NPDES permitting authorities must permitting authorities should be The NPDES permitting authority can, providing extensive support to the local at any time, mandate compliance with issue NPDES permits to cover municipal sources to be regulated under § 122.32, governments to assist them in program requirements from a previously developing and implementing their waived small MS4 if circumstances unless waived under § 122.32(c). EPA encourages permitting authorities to use programs. change. For example, a waiver can be In the proposed rule, EPA stated that general permits as the vehicle for withdrawn in circumstances where the the permitting authority would develop permitting and regulating small MS4s. permitting authority later determines the menu of BMPs and if they failed to The Agency notes, however, that some that a waived small MS4’s storm water do so, EPA would develop the menu. operators may wish to take advantage of discharge to a small stream will cause Commenters felt that EPA should the option to join as a co-permittee with adverse impacts to water quality or develop a menu of BMPs, rather than an MS4 regulated under the existing significantly interfere with attainment of just providing guidance. In the NPDES storm water program. water quality standards. A ‘‘change in settlement agreement for seeking an circumstances’’ could involve receipt of Today’s final rule includes a extension to the deadline for issuing new information. Changed provision, § 123.35(f), that requires today’s rule, EPA committed to circumstances can also allow a NPDES permitting authorities to either developing a menu of BMPs by October regulated small MS4 operator to request include the requirements in § 122.34 for 27, 2000. Permitting authorities can a waiver at any time. NPDES permits issued for regulated adopt EPA’s menu or develop their own. Some commenters expressed concerns small MS4s or to develop permit limits The menu itself is not intended to about allowing any small MS4 waivers. based on a permit application submitted replace more comprehensive BMP One commenter stated that storm water by a small MS4. See Section II.H.3.a, guidance materials. As part of the tool pollution prevention plans are Minimum Control Measures, for more box efforts, EPA will provide separate necessary to control storm water details on the actual § 122.34 guidance documents that discuss the pollution and should be required from requirements. See Section II.H.3.c for results from EPA-sponsored nationwide all regulated small MS4s. For the alternative and joint permitting options. studies on the design, operation and reasons stated in the Background In an attempt to avoid duplication of maintenance of BMPs. Additionally, section above, EPA agrees that the effort, § 122.34(c) allows NPDES EPA expects that the new rulemaking on discharges from most MS4s in permitting authorities to include permit construction BMPs may provide more urbanized areas should be addressed by conditions that direct an MS4 to meet specific design, operation and a storm water management program the requirements of a qualifying local, maintenance criteria. outlined in today’s rule. For MS4s Tribal, or State municipal storm water serving very small areas, however, the management program. For a local, 5. Support and Oversee the Local TMDL development process provides an Tribal, or State program to ‘‘qualify,’’ it Programs opportunity to determine whether an must impose, at a minimum, the NPDES permitting authorities are MS4 serving a population less than relevant requirements of § 122.34(b). A responsible for supporting and 1,000 is having a negative impact on any regulated small MS4 must still follow overseeing the local municipal receiving water that is impaired by a the procedural requirements for an programs. Section 123.35(h) of today’s pollutant that the MS4 discharges. MS4s NPDES permit (i.e., submit an final rule highlights issues associated serving populations up to 10,000 may application, either an individual with these responsibilities. receive a waiver only if a application or an NOI under a general To the extent possible, NPDES comprehensive analysis of its impact on permit) but will instead follow the permitting authorities should provide receiving water has been performed. substantive pollutant control financial assistance to MS4s, which

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68748 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations often have limited resources, for the H. Municipal Role required minimum control measures. development and implementation of For example, the NPDES permitting 1. Scope of Today’s Rule local programs. EPA recognizes that authority can incorporate by reference funding for programs at the State and Today’s final rule attempts to qualifying State, Tribal, or local Tribal levels may also be limited, but establish an equitable and programs in an NPDES general permit strongly encourages States and Tribes to comprehensive four-pronged approach and can recognize existing provide whatever assistance is possible. for the designation of municipal responsibilities among different In lieu of actual dollars, NPDES sources. First, the approach defines for governmental entities for the permitting authorities can provide cost- automatic coverage the municipal implementation of minimum control cutting assistance in a number of ways. systems believed to be of highest threat measures. In addition, a regulated small For example, NPDES permitting to water quality. Second, the approach MS4 can participate in the storm water authorities can develop outreach designates municipal systems that meet management program of an adjoining materials for MS4s to distribute or the a set of objective criteria used to regulated MS4 and can arrange to have NPDES permitting authority can measure the potential for water quality another governmental entity implement actually distribute the materials. impacts. Third, the approach designates a minimum control measure on their Another option is to implement an on a case-by-case basis municipal behalf. erosion and sediment control program systems that ‘‘contribute substantially to across an entire State (or Tribal land), the pollutant loadings of a physically- 2. Municipal Definitions thus alleviating the need for the MS4 to interconnected [regulated] MS4.’’ a. Municipal Separate Storm Sewer implement its own program. The Finally, the approach designates on a Systems (MS4s) NPDES permitting authority must case-by-case basis, upon petition, The CWA does not define the term balance the need for site-specific municipal systems that ‘‘contribute to a ‘‘municipal separate storm sewer.’’ EPA controls, which are best handled by a violation of a water quality standard or defined municipal separate storm sewer local MS4, with its ability to offer are a significant contributor of in the existing storm water permit financial assistance. EPA, States, Tribes, pollutants.’’ application regulations to mean, in part, and MS4s should work as a team in Today’s final rule automatically a conveyance or system of conveyances making these kinds of decisions. designates for regulation small MS4s NPDES permitting authorities are located in urbanized areas, and requires (including roads with drainage systems responsible for overseeing the local that NPDES permitting authorities and municipal streets) that is ‘‘owned or programs. Permitting authorities should examine for potential designation, at a operated by a State, city, town borough, work with the regulated community and minimum, a particular subset of small county, parish, district, association, or other stakeholders to assist in local MS4s located outside of urbanized other public body * * * designed or program development and areas. Today’s rule also includes used for collecting or conveying storm implementation. This might include provisions that allow for waivers from water which is not a combined sewer sharing information, analyzing reports, the otherwise applicable requirements and which is not part of a Publicly and taking enforcement actions, as for the smallest MS4s that are not Owned Treatment Works as defined at necessary. NPDES permitting authorities causing impairment of a receiving water 40 CFR 122.2’’ (see § 122.26(b)(8)(i)). play a vital role in supporting local body. Qualifications for the waivers Section 122.26 contains definitions of programs by providing technical and vary depending on whether the MS4 medium and large municipal separate programmatic assistance, conducting serves a population under 1,000 or a storm sewer systems but no definition of research projects, and monitoring population under 10,000. See a municipal separate storm sewer watersheds. The NPDES permitting §§ 122.32(d) and (e). These waivers are system, even though the term MS4 is authority can also assist the MS4 discussed further in section II.G.3. Any commonly used. In today’s rule, EPA is permittee in obtaining adequate legal small MS4 automatically designated by adding a definition of municipal authority at the local level in order to the final rule or designated by the separate storm sewer system and small implement the local component of the permitting authority under today’s final municipal separate storm sewer system CWA section 402(p)(6) program. rule is defined as a ‘‘regulated’’ small along with the abbreviations MS4 and NPDES permitting authorities are MS4 unless it receives a waiver. small MS4. encouraged to coordinate and utilize the In today’s final rule, all regulated The existing municipal permit data collected under several programs. small MS4s must establish a storm application regulations define States and Tribes address point and water discharge control program that ‘‘medium’’ and ‘‘large’’ MS4s as those nonpoint source storm water discharges meets the requirements of six minimum located in an incorporated place or through a variety of programs. In control measures. These minimum county with a population of at least developing programs to carry out CWA control measures are public education 100,000 (medium) or 250,000 (large) as section 402(p)(6), EPA recommends that and outreach on storm water impacts, determined by the latest Decennial States and Tribes coordinate all of their public involvement participation, illicit Census (see §§ 122.26(b)(4) and water pollution evaluation and control discharge detection and elimination, 122.26(b)(7)). In today’s final rule, these programs, including the continuing construction site storm water runoff regulations have been revised to define planning process under CWA section control, post-construction storm water all medium and large MS4s as those 303(e), the existing NPDES program, the management in new development and meeting the above population CZARA program, and nonpoint source redevelopment, and pollution thresholds according to the 1990 pollution control programs. prevention/good housekeeping for Decennial Census. In addition, NPDES permitting municipal operations. Today’s rule also corrects the titles authorities are encouraged to provide a Today’s rule allows for a great deal of and contents of Appendices F, G, H,& I brief (e.g., two-page) reporting format to flexibility in how an operator of a to Part 122. EPA is adding those facilitate compilation and analysis of regulated small MS4 is authorized to incorporated places and counties whose data from reports submitted under discharge under an NPDES permit, by 1990 population caused them to be § 122.34(g)(3). EPA intends to develop a providing various options for obtaining defined as a ‘‘medium’’ or ‘‘large’’ MS4. model form for this purpose. permit coverage and satisfying the All of these MS4s have applied for

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68749 permit coverage so the effect of this way as other similar MS4s. However, geographical area including highways change to the appendices is simply to EPA received several comments asking and flood control districts will be make them more accurate. They will not whether individual federal buildings covered.’’ Many permitting authorities need to be revised again because today’s such as post offices or urban offices of regulated State DOTs as co-permittees rule ‘‘freezes’’ the definition of the U.S. Park Service must apply for with the Phase 1 municipality in which ‘‘medium’’ and ‘‘large’’ MS4s at those coverage as regulated small MS4s. Most the highway is located. State DOTs that that qualify based on the 1990 census. of these buildings have, at most, a are already regulated under Phase I are EPA received several comments parking lot with runoff or a storm sewer not required to comply with Phase II. supporting and opposing the proposal to that connects with a municipality’s State DOTs that are not already ‘‘freeze’’ the definitions based on the MS4. In § 122.26(a)(16)(iii), EPA regulated have various options for 1990 census. Commenters who clarifies that the definition of small MS4 meeting the requirements of today’s disagreed with EPA’s position cited the does not include individual buildings. rule. These options are discussed in unfairness of municipalities that reach These buildings may have a municipal Section II.H.3.c.iv below. Several DOTs the medium or large threshold at a later separate storm sewer but they do not commented that some of the minimum date having fewer permitting have a ‘‘system’’ of conveyances. The measures are outside the scope of their requirements compared to those that minimum measures for small MS4s mission or that they do not have the were already at the population were written to apply to storm sewer legal authority required for thresholds when the existing storm ‘‘systems’’ providing storm water implementation. EPA believes that the water regulations took effect. EPA drainage service to human populations flexibility of the minimum measures recognizes this disparity but does not and not to individual buildings. This is allows them to be implemented by most believe it is unfair, as explained in the true of municipal separate storm sewers MS4s, including DOTs. When a DOT proposed rule. The decision was based from State buildings as well as from does not have the necessary legal on the fact that the deadlines from the federal buildings. authority, EPA encourages the DOT to existing regulations have lapsed, and There will likely be situations where coordinate their storm water because the permitting authority can the permitting authority must decide if management efforts with the always require more from operators of a federal or State complex should be surrounding municipalities and other MS4s serving ‘‘newly over 100,000’’ regulated as a small MS4. A federal State agencies. Under today’s rule, populations. complex of two or three buildings could DOTs can use any of the options of be treated as a single building and not b. Small Municipal Separate Storm § 122.35 to share their storm water be required to apply for coverage. In Sewer Systems management responsibilities. DOTs may these situations, permitting authorities also want to work with their permitting The proposal to today’s final rule will have to use their best judgment as authority to develop a State-wide DOT added ‘‘the United States’’ as a potential to the nature of the complex and its storm water permit. owner or operator of a municipal storm water conveyance system. There are many storm water separate storm sewer. This addition was Permitting authorities should also discharges from State DOTs and other intended to address an omission from consider whether the federal or State State MS4s located in Phase 1 areas that existing regulations and to clarify that complex cooperates with its were not regulated under Phase 1. federal facilities are, in fact, covered by municipality’s efforts to implement Today’s rule adds many more State the NPDES program for municipal storm their storm water management program. facilities as well as all federal facilities water discharges when the federal Along with the questions about located in urbanized areas. All of these facility is like other regulated MS4s. individual buildings, EPA received State and federal facilities that fit the EPA received a comment that this many questions about how various definition of a small MS4 must be change would cause federal facilities provisions of the rule should be covered by a storm water management located in Phase 1 areas to be interpreted for federal and State program. The individual permitting considered Phase 1 dischargers due to facilities. EPA acknowledges that authorities must decide what type of the definition of medium and large federal and State facilities are different permit is most applicable. MS4s. All MS4s located in Phase 1 from municipalities. EPA believes, The existing NPDES storm water cities or counties are defined as Phase however, that the minimum measures program already regulates storm water 1 medium or large MS4s. EPA believes are flexible enough that they can be from federally or State-operated that all federal facilities serve a implemented by these facilities. As an industrial sources. Federal or State population of under 100,000 and should example, DOD commenters asked about facilities that are currently regulated be regulated as small MS4s. Therefore, how to interpret the term ‘‘public’’ for due to their industrial discharges may in § 122.26(a)(16) of today’s final rule, military installations when already be implementing some of EPA is adding federal facilities to the implementing the public education today’s rule requirements. NPDES storm water discharge control measure. EPA agrees with the suggested EPA received comments that program by changing the proposed interpretation of ‘‘public’’ for DOD questioned the apparent inconsistency definition of small municipal separate facilities as ‘‘the resident and employee between regulating a federal facility storm sewer system. Paragraph (i) of this population within the fence line of the such as a hospital and not regulating a section restates the definition of facility.’’ similar private facility. Normally, this municipal separate storm sewer with EPA also received many comments type of private facility is regulated by the addition of ‘‘the United States’’ as a from State departments of transportation the MS4. EPA believes that federal owner or operator of a small municipal (DOTs) that suggested the ways in facilities are subject to local water separate storm sewer. Paragraph (ii) which they are different from quality regulations, including storm repeats the proposed language that municipalities and should therefore be water requirements, by virtue of the states that a small MS4 is a municipal regulated differently. Storm water waiver of sovereign immunity in CWA separate storm sewer that is not medium discharges from State DOTs in Phase 1 section 313. However, there are special or large. areas should already be regulated under problems faced by MS4s in their efforts Most commenters agreed that federal Phase I. The preamble to Phase 1 clearly to regulate federal facilities that have facilities should be covered in the same states that ‘‘all systems within a not been encountered in regulating

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68750 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations similar private facilities. To ensure such a unified program. Many definition, EPA included Appendices 6 comprehensive coverage, today’s rule municipalities that are served by CSSs and 7 to assist in the identification of merely clarifies the need for permit and MS4s commented that it is areas that would probably require coverage for these federal facilities. inequitable to force them to comply coverage as ‘‘automatically designated’’ i. Combined Sewer Systems (CSS). with Phase II at this time because (Appendix 6) or ‘‘potentially The definition of small MS4s does not implementation of the CSO Control designated’’ (Appendix 7). The include combined sewer systems. A Policy through their NPDES permits definition and the appendices raised combined sewer system is a wastewater already imposes a significant financial many questions about exactly who was collection system that conveys sanitary burden. They requested an extension of required to comply with the proposed wastewater and storm water through a the implementation time frame. They requirements. Commenters raised issues single set of pipes to a publicly-owned did not provide ideas on how to unify about the definition of ‘‘incorporated treatment works (POTW) for treatment the two programs. EPA encourages place’’ and the status of towns, before discharging to a receiving permitting authorities to work with townships, and other places that are not waterbody. During wet weather events these municipalities as they develop considered incorporated by the Census when the capacity of the combined and begin implementation of their CSO Bureau. They also asked about special sewer system is exceeded, the system is and storm water management programs. districts, regional authorities, MS4s designed to discharge prior to the If both sets of requirements are carefully already regulated, and other questions POTW treatment plant directly into a coordinated early, a cost-effective wet in order to clarify the rule’s coverage. receiving waterbody. Such an overflow weather program can be developed that EPA has revised § 122.32(a) to clarify is a combined sewer overflow or CSO. will address both CSO and storm water that discharges are regulated under Combined sewer systems are not subject requirements. today’s rule if they are from a small MS4 to existing regulations for municipal ii. Owners/Operators. Several that is in an urbanized area and has not storm water discharges, nor will they be commenters mentioned the difference received a waiver or they are designated subject to today’s regulations. EPA between the existing storm water by the permitting authority. Today’s addresses combined sewer systems and application requirement for municipal rule does not regulate the county, city, CSOs in the National Combined Sewer operators and the proposed municipal or town. Today’s rule regulates the MS4. Overflow (CSO) Control Policy issued requirement for owners or operators to Therefore, even though a county may be on April 19, 1994 (59 FR 18688). The apply. They felt that this inconsistency listed in Appendix 6, if that county does CSO Control Policy contains provisions is confusing. The preamble to the not own or operate the municipal storm for developing appropriate, site-specific existing regulations makes numerous sewer systems, the county does not have NPDES permit requirements for references to owner/operator so there to submit an application or develop a combined sewer systems. CSO was no intent to make a clear distinction storm water management program. If discharges are subject to limitations between Phase I and Phase II. Section another entity does own or operate an based on the best available technology 122.21(b) states that when the owner MS4 within the county, for example, a economically achievable for toxic and operator are different, the operator regional utility district, that other entity pollutants and based on the best must obtain the permit. MS4s often have needs to submit the application and conventional pollutant control several operators. The owner may be develop the program. technology for conventional pollutants. responsible for one part of the system Some commenters suggested that EPA MS4s are subject to a different and a regional authority may be should change the rule language to technology standard for all pollutants, responsible for other aspects. EPA specifically allow regional authorities to specifically to reduce pollutants to the proposed the ‘‘owner or operator’’ be the permitted entity and to allow maximum extent practicable. language to convey this dual small MS4s to apply as co-permittees. Some municipalities are served by responsibility. However, when the EPA believes that the best way to clarify both separate storm sewer systems and owner is responsible for some part of a that regional authorities can be the combined sewer systems. If such a storm water management plan, it is also primary permitted entity is the change municipality is located within an an operator. to § 122.32(a) and the explanation urbanized area, only the separate storm EPA has revised the regulation above. Because EPA assumes that sewer systems within that municipality language to clarify that ‘‘an operator’’ today’s regulation will be implemented is included in the NPDES storm water must apply for a permit. When through general permits, MS4s will not program and subject to today’s final responsibilities for the MS4 are shared, be co-permittees under a general permit rule. If the municipality is not located all operators must apply. in the same manner as under individual in an urbanized area, then the NPDES permits. EPA has added § 122.33(a)(4) permitting authority has discretion as to c. Regulated Small MS4s and made a minor change to § 122.35(a) whether the discharges from the In today’s final rule, all small MS4s to clarify that small MS4s can work separate storm sewer system is subject located in an urbanized area are together to share the responsibilities of to today’s final rule. The NPDES automatically designated as ‘‘regulated’’ a storm water management program. permitting authority will use the same small MS4s provided that they were not This is discussed further in Section process to designate discharges from previously designated into the existing II.H.3.c.iv below. portions of an MS4 for permit coverage storm water program. Unlike medium The proposed rule stated that when a where the municipality is also served by and large MS4s under the existing storm county or Federal Indian reservation is a combined sewer system. water regulations, not all small MS4s only partially included in an urbanized EPA recognizes that municipalities are designated under today’s final rule. area, only MS4s in the urbanized that have both combined and separate Therefore, today’s rule distinguishes portion of the county or Federal Indian storm sewer systems may wish to find between ‘‘small’’ MS4s and ‘‘regulated reservation would be regulated. In the ways to develop a unified program to small’’ MS4s. rare cases when an incorporated place is meet all wet weather water pollution EPA’s definition of ‘‘regulated small only partially included in the urbanized control requirements more efficiently. In MS4s’’ in the proposal to today’s rule area, the entire incorporated place the proposal to today’s final rule, EPA included mention of incorporated would be regulated. EPA received sought comment on ways to achieve places and counties. Along with the comments asking about towns and

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68751 townships, because they were not studies to help explain the census included within an urbanized area as of considered to be incorporated areas category of ‘‘urbanized area.’’ Appendix the 1990 Census will not later be according to the Census Bureau’s 2 is a simplified urbanized area excluded from the urbanized area as of definition. Would the whole town/ illustration to help demonstrate the the 2000 Census. However, it is township be covered or only the part of concept of urbanized areas in relation to important to note that even if this the town/township in the urbanized today’s final rule. The ‘‘urbanized area’’ situation were to occur, for example, area? States use many different types of is the shaded area that includes within due to a possible change in the Bureau systems in their geographical divisions. its boundaries incorporated places, a of the Census’ urbanized area definition, Some towns are similar to incorporated portion of a Federal Indian reservation, a small MS4 that is automatically cities and others are large areas that are portions of two counties, an entire town, designated into the NPDES program for more similar to counties. Some and portions of another town. All small storm water under an urbanized area commenters thought that the urbanized MS4s located in the shaded area are calculation for any given Census year area boundary was arbitrary, and if part covered by the rule, unless and until will remain regulated regardless of the of a town or county was covered, it all waived by the permitting authority. Any results of subsequent urbanized area should be covered. Other commenters small MS4s located outside of the calculations. noted that some townships and counties shaded area are subject to potential ii. Rationale for Using Urbanized encompass very large areas of which designation by the permitting authority. Areas. EPA is using urbanized areas to only a small portion is urbanized. Due There are 405 urbanized areas in the automatically designate regulated small to the great variety of situations, EPA United States that cover 2 percent of MS4s on a nationwide basis for several has decided that for all geographical total U.S. land area and contain reasons: (1) studies and data show a entities, only MS4s in the urbanized approximately 63 percent of the nation’s high correlation between degree of area are automatically designated. The population (see Appendix 3 for a listing development/ urbanization and adverse population densities associated with the of urbanized areas of the United States impacts on receiving waters due to Census Bureau’s designation of and Puerto Rico). These numbers storm water (U.S. EPA, 1983; Driver et urbanized areas provide the basis for include U.S. Territories, although al., 1985; Pitt, R.E. 1991. ‘‘Biological designation of these areas to protect Puerto Rico is the only territory to have Effects of Urban Runoff Discharges.’’ water quality. This focused designation Census-designated urbanized areas. Presented at the Engineering provides for consistency and allows for Urbanized areas constitute the largest Foundation Conference: Urban Runoff flexibility on the part of the MS4 and and most dense areas of settlement. The and Receiving Systems; An the permitting authority. In those purpose of determining an ‘‘urbanized Interdisciplinary Analysis of Impact, situations where an incorporated place area’’ is to delineate the boundaries of Monitoring and Management, August or a town is not all in an ‘‘urbanized development and map the actual built- 1991. Mt. Crested Butte, CO. American area’’, there is a good possibility that it up urban area. The Bureau of the Census Society of Civil Engineers, New York. is served by more than one MS4. In geographers liken it to flying over an 1992.; Pitt, R.E. 1995. ‘‘Biological Effects those cases where the area is served by urban area and drawing a line around of Urban Runoff Discharges,’’ in Storm the same MS4, it makes sense to the boundary of the built-up area as water Runoff and Receiving Systems: develop a storm water program for the seen from the air. Impact, Monitoring, and Assessment. whole area. Permitting authorities may Using data from the latest decennial Lewis Publishers, New York.; Galli, J. also decide to designate all MS4s within census, the Census Bureau applies the 1990. Thermal Impacts Associated with a county or township, if they believe it urbanized area definition nationwide Urbanization and Storm water is necessary to protect water quality. (including U.S. Tribes and Territories) Management Best Management Most operators of MS4s will not need and determines which places and Practices. Prepared for the Sediment to independently determine the status of counties are included within each and Storm water Administration of the coverage under today’s rule. EPA has urbanized area. For each urbanized area, Maryland Department of the revised the proposed Appendices 6 and the Bureau provides full listings of who Environment.; Klein, 1979), (2) the 7 to include towns and townships. is included, as well as detailed maps blanket coverage within the urbanized Therefore, these appendices will alert and special CD-ROM files for use with area encourages the watershed approach most MS4s as to whether they are likely computerized mapping systems (such as and addresses the problem of ‘‘donut- to be covered under today’s rule. GIS). Each State’s data center receives a holes,’’ where unregulated areas are However, each permitting authority copy of the list, and some maps, surrounded by areas currently regulated must make the decision as to who automatically. The States also have the (storm water discharges from donut hole requires coverage. Most likely, an CD–ROM files and a variety of areas present a problem due to their illustrative list of the regulated areas publications available to them for contributing uncontrolled adverse will be published with the general reference from the Bureau of the Census. impacts on local waters, as well as by permit. If not, the operator can contact In addition, local or regional planning frustrating the attainment of water its permitting authority or the Bureau of agencies may have urbanized area files quality goals of neighboring regulated the Census to find out if their separate already. New listings for urbanized communities), (3) this approach targets storm sewer systems are within an areas based on the 2000 Census will be present and future growth areas as a urbanized area. available by July/August 2001, but the preventative measure to help ensure i. Urbanized Area Description. Under more comprehensive computer files will water quality protection, and (4) the the Bureau of the Census definition of not be available until late 2001/early determination of urbanized areas by the ‘‘urbanized area,’’ adopted by EPA for 2002. Bureau of the Census allows operators the purposes of today’s final rule, ‘‘an Additional designations based on of small MS4s to quickly determine urbanized area (UA) comprises a place subsequent census years will be whether they are included in the NPDES and the adjacent densely settled governed by the Bureau of the Census’ storm water program as a regulated surrounding territory that together have definition of an urbanized area in effect small MS4. a minimum population of 50,000 for that year. Based on historical trends, Urbanized areas have experienced people.’’ The proposal to today’s rule EPA expects that any area determined significant growth over the past 50 provided the full definition and case by the Bureau of the Census to be years. According to EPA calculations

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68752 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations based on Census data from 1980 to quality standards, including supporting the waiver vary depending on whether 1990, the national average rate of growth designated uses. The approach would the MS4 serves a population under in the United States during that 10-year also rely on identifying storm water 1,000 or a population between 1,000 period was more than 4 percent. For the management programs following and 10,000. Note that even if a small same period, the average growth within comprehensive watershed plans and MS4 has requirements waived, it can urbanized areas was 15.7 percent and TMDL development. In most States, subsequently be brought back into the the average for outside of urbanized water quality assessments have program if circumstances change. See areas was just more than 1 percent. The traditionally been conducted for Section II.G, NPDES Permitting new development occurring in these principal mainstream rivers and their Authority’s Role, for more details on growing areas can provide some of the major tributaries, not all surface waters. this process. best opportunities for implementing The establishment of TMDLs cost-effective storm water management nationwide will take many years, and 3. Municipal Permit Requirements controls. many States will conduct additional a. Overview EPA received many comments on the monitoring to determine water quality i. Summary of Permitting Options. proposal to designate discharges based conditions prior to establishing TMDLs. Today’s rule outlines six minimum on location within urbanized areas. EPA In addition, a case-by-case approach control measures that constitute the considered numerous other approaches, would not address the problem of framework for a storm water discharge several of which are discussed in the ‘‘donut holes’’ within urbanized areas control program for regulated small proposal to today’s final rule. Several and a lack of consistency among MS4s that, when properly implemented, commenters wanted designation to be similarly situated municipal systems will reduce pollutants to the maximum based on proven water quality problems would remain commonplace. After extent practicable (MEP). These six rather than inclusion in an urbanized careful consideration of all comments, minimum control measures are area. One commenter proposed an EPA still believes that the approach in specified in § 122.34(b) and are approach based on the CWA 303(d) today’s rule is the most appropriate to discussed below in section ‘‘II.H.3.b, listing of impaired waters and the protect water quality. Protection Program Requirements-Minimum wasteload allocation conducted under includes prevention as well as Control Measures.’’ All operators of the TMDL process. (See section II.L. on remediation. the section 303(d) and TMDL process). regulated small MS4s are required to The commenter’s proposal would d. Municipal Designation by the obtain coverage under an NPDES designate small MS4s on a case-by-case Permitting Authority permit, unless the requirement is basis, covering only those discharges Today’s final rule also allows NPDES waived by the permitting authority in where receiving streams are shown to permitting authorities to designate MS4s accordance with today’s rule. have water quality problems, that should be included in the storm Implementation of § 122.34(b) may be particularly a failure to meet water water program as regulated small MS4s required either through an individual quality standards, including designated but are not located within urbanized permit or, if the State or EPA makes one uses. The commenter further described areas. The final rule requires, at a available to the facility, through a a non-NPDES approach where a State minimum, that a set of designation general permit. The process for issuing would require cost-effective measures criteria be applied to all small MS4s and obtaining these permits is discussed based on a proportionate share under a within a jurisdiction that serves a below in section ‘‘II.H.3.c, Application waste load allocation, equitably population of at least 10,000 and has a Requirements.’’ allocated among all pollutant population density of at least 1,000. As an alternative to implementing a contributors. These waste load Appendix 7 to this preamble provides program that complies with the allocations would be developed with an illustrative list of places that the requirements of § 122.34, today’s rule input from all stakeholders, and Agency anticipates meet this criteria. In provides operators of regulated small remedial measures would be addition, any small MS4 may be the MS4s with the option of applying for an implemented in a phased manner based subject of a petition to the NPDES individual permit under § 122.26(d). on the probability of results and/or permitting authority for designation. See The permit application requirements in economic feasibility. The States would Section II.G, NPDES Permitting § 122.26 were originally drafted to apply then periodically reassess the receiving Authority’s Role for more details on the to medium and large MS4s. Although streams to determine whether the designation and petition processes. EPA EPA believes that the requirements of remedial measures are working, and if believes that the approach of combining § 122.34 provide a regulatory option that not, require additional control measures nationwide and local designation to is appropriate for most small MS4s, the using the same procedure used to determine municipal coverage balances operators of some small MS4s may establish the initial measures. What the the potential for significant adverse prefer more individualized commenter describes is almost a TMDL. impacts on water quality with local requirements. This alternative EPA considered a remedial approach watershed protection and planning permitting option for regulated small based on water quality impairment and efforts. MS4s that wish to develop their own rejected it for failure to prevent almost program is discussed below in section certain degradation caused by urban e. Waiving the Requirements for Small ‘‘II.H.3.c.iii. Alternative Permit Option.’’ storm water. EPA’s main concern in MS4s The second alternative permitting opting not to take a case-by-case Today’s final rule includes some option for regulated small MS4s is to approach to designation was that this flexibility in the nationwide coverage of become co-permittees with a medium or approach would not provide controls for all small MS4s located in urbanized large MS4 regulated under § 122.26(d), storm water discharges in receiving areas by providing the NPDES as discussed below in section streams until after a site-specific permitting authority with the discretion ‘‘II.H.3.c.v. Joint Permit Programs.’’ demonstration of adverse water quality to waive the otherwise applicable ii. Water Quality-Based Requirements. impact. The commenter’s suggestion requirements of the smallest MS4s that Any NPDES permit issued under today’s would do nothing to prevent pollution are not causing the impairment of a rule must, at a minimum, require the in waters that may be meeting water receiving water body. Qualifications for operator to develop, implement, and

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Absent evidence to be confounded by practical limitations the Agency’s action in issuing five MS4 the contrary, EPA presumes that a small in sample collection. permits that included water quality- MS4 program that implements the six In the first two to three rounds of based effluent limitations. The Court minimum measures in today’s rule does permit issuance, EPA envisions that a did, however, disagree with EPA’s not require more stringent limitations to BMP-based storm water management interpretation of the relationship meet water quality standards. Proper program that implements the six between CWA sections 301 and 402(p). implementation of the measures will minimum measures will be the extent of The Court reasoned that MS4s are not significantly improve water quality. As the NPDES permit requirements for the compelled by section 301(b)(1)(C) to discussed further below, however, small large majority of regulated small MS4s. meet all State water quality standards, MS4 permittees should modify their Because the six measures represent a but rather that the Administrator or the programs if and when available significant level of control if properly State may rely on section information indicates that water quality implemented, EPA anticipates that a 402(p)(3)(B)(iii) to require such controls. considerations warrant greater attention permit for a regulated small MS4 Accordingly, the Defenders of Wildlife or prescriptiveness in specific operator implementing BMPs to satisfy decision is consistent with the Agency’s components of the municipal program. the six minimum control measures will 1996 ‘‘Interim Permitting Policy for If the program is inadequate to protect be sufficiently stringent to protect water Water Quality-Based Effluent water quality, including water quality quality, including water quality Limitations in Storm Water Permits.’’ standards, then the permit will need to standards, so that additional, more As noted, the 1996 Policy describes be modified to include any more stringent and/or more prescriptive water how permits would implement an iterative process using BMPs, stringent limitations necessary to quality based effluent limitations will be assessment, and refocused BMPs, protect water quality. unnecessary. leading toward attainment of water If a small MS4 operator implements Regardless of the basis for the quality standards. The ultimate goal of the six minimum control measures in development of the effluent limitations the iteration would be for water bodies (whether designed to implement the six § 122.34(b) and the discharges are to support their designated uses. EPA minimum measures or more stringent or determined to cause or contribute to believes this iterative approach is prescriptive limitations to protect water non-attainment of an applicable water consistent with and implements section quality), EPA considers narrative quality standard, the operator needs to 301(b)(1)(C), notwithstanding the Ninth effluent limitations requiring expand or better tailor its BMPs within Circuit’s interpretation. As an implementation of BMPs to be the most the scope of the six minimum control alternative to basing these water quality- appropriate form of effluent limitations measures. EPA envisions that this based requirements on section for MS4s. CWA section 402(p)(3)(b)(iii) process will occur during the first two 301(b)(1)(C), however, EPA also believes expresses a preference for narrative to three permit terms. After that period, the iterative approach toward rather than numeric effluent limits, for EPA will revisit today’s regulations for attainment of water quality standards example, by reference to ‘‘management the municipal separate storm sewer represents a reasonable interpretation of practices, control techniques and program. CWA section 402(p)(3)(B)(iii). For this system, design and engineering If the permitting authority (rather than reason, today’s rule specifies that the methods, and such other provisions as the regulated small MS4 operator) needs ‘‘compliance target’’ for the design and the Administrator or the State to impose additional or more specific implementation of municipal storm determines appropriate for the control measures to protect water quality, then water control programs is ‘‘to reduce of such pollutants.’’ 33 U.S.C. that action will most likely be the result pollutants to the maximum extent 1342(p)(3)(B)(iii). EPA determines that of an assessment based on a TMDL or practicable (MEP), to protect water pollutants from wet weather discharges equivalent analysis that determines quality, and to satisfy the appropriate are most appropriately controlled sources and allocations of pollutant(s) of water quality requirements of the through management measures rather concern. EPA believes that the small CWA.’’ The first component, reductions than end-of-pipe numeric effluent MS4’s additional requirements, if any, to the MEP, would be realized through limitations. As explained in the Interim should be guided by its equitable share implementation of the six minimum Permitting Policy for Water Quality- based on a variety of considerations, measures. The second component, to Based Effluent Limitations in Storm such as cost effectiveness, proportionate protect water quality, reflects the overall Water Permits, issued on August 1, 1996 contribution of pollutants, and ability to design objective for municipal programs [61 FR 43761 (November 26, 1996), EPA reasonably achieve wasteload based on CWA section 402(p)(6). The believes that the currently available reductions. Narrative effluent third component, to implement other methodology for derivation of numeric limitations in the form of BMPs may applicable water quality requirements of water quality-based effluent limitations still be the best means of achieving the CWA, recognizes the Agency’s is significantly complicated when those reductions. specific determination under CWA applied to wet weather discharges from See Section II.L, Water Quality Issues, section 402(p)(3)(B)(iii) of the need to MS4s (compared to continuous or for further discussion of this approach achieve reasonable further progress periodic batch discharges from most to permitting, consistent with EPA’s toward attainment of water quality other types of discharge). Wet weather interim permitting guidance. Pursuant standards according to the iterative BMP discharges from MS4s introduce a high to CWA section 510, States process, as well as the determination degree of variability in the inputs to the implementing their own NPDES that State or EPA officials who establish models currently available for programs may develop more stringent or TMDLs could allocate waste loads to

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MS4s, as they would to other point implementation of the BMPs can be proposed storm water management sources. assessed. Upon receipt of the NOI from controls to determine whether reduction EPA does not presume that water a small MS4 operator, the NPDES of pollutants to the MEP can be quality will be protected if a small MS4 permitting authority will have the achieved with the identified BMPs. elects not to implement all of the six opportunity to review the NOI to verify EPA envisions application of the MEP minimum measures and instead applies that the identified BMPs and standard as an iterative process. MEP for alternative permit limits under measurable goals are consistent with the should continually adapt to current § 122.26(d). Operators of such small requirement to reduce pollutants under conditions and BMP effectiveness and MS4s that apply for alternative permit the MEP standard, to protect water should strive to attain water quality limits under § 122.26(d) must supply quality, and to satisfy the appropriate standards. Successive iterations of the additional information through water quality requirements of the Clean mix of BMPs and measurable goals will individual permit applications so that Water Act. If necessary, the NPDES be driven by the objective of assuring the permit writer can determine permitting authority may ask the maintenance of water quality standards. whether the proposed program reduces permittee to revise their mix of BMPs, If, after implementing the six minimum pollutants to the MEP and whether any for example, to better reflect the MEP control measures there is still water other provisions are appropriate to pollution reduction requirement. Where quality impairment associated with protect water quality and satisfy the the NPDES permit is not written to discharges from the MS4, after appropriate water quality requirements implement the minimum control successive permit terms the permittee of the Clean Water Act. measures specified under § 122.34(b), will need to expand or better tailor its iii. Maximum Extent Practicable. for example in the case of an individual BMPs within the scope of the six Maximum extent practicable (MEP) is permit under § 122.33(b)(2)(ii), the MEP minimum control measures for each the statutory standard that establishes standard will be applied based on the subsequent permit. EPA envisions that the level of pollutant reductions that best professional judgment of the permit this process may take two to three operators of regulated MS4s must writer. permit terms. achieve. The CWA requires that NPDES Commenters argued that MEP is, as One commenter observed that MEP is permits for discharges from MS4s ‘‘shall yet, an undefined term and that EPA not static and that if the six minimum require controls to reduce the discharge needs to further clarify the MEP control measures are not achieving the of pollutants to the maximum extent standards by providing a regulatory necessary water quality improvements, practicable, including management definition that includes recognition of then an MS4 should be expected to practices, control techniques and cost considerations and technical revise and, if necessary, expand its system, design and engineering feasibility. Commenters argued that, program. This concept, it is argued, methods.’’ CWA Section without a definition, the regulatory must be clearly part of the definition of 402(p)(3)(B)(iii). This section also calls community is not adequately on notice MEP and thus incorporated into the for ‘‘such other provisions as the [EPA] regarding the standard with which they binding and operative aspects of the Administrator or the State determines need to comply. EPA disagrees that rule. As is explained above, EPA appropriate for the control of such affected MS4 permittees will lack notice believes that it is. The iterative process pollutants.’’ EPA interprets this of the applicable standard. The described above is intended to be standard to apply to all MS4s, including framework for the small MS4 permits sensitive to water quality concerns. EPA both existing regulated (large and described in this notice provides EPA’s believes that today’s rule contains medium) MS4s, as well as the small interpretation of the standard and how provisions to implement an approach MS4s regulated under today’s rule. it should be applied. that is consistent with this comment. For regulated small MS4s under EPA has intentionally not provided a today’s rule, authorization to discharge precise definition of MEP to allow b. Program Requirements’Minimum may be under either a general permit or maximum flexibility in MS4 permitting. Control Measures individual permit, but EPA anticipates MS4s need the flexibility to optimize A regulated small MS4 operator must and expects that general permits will be reductions in storm water pollutants on develop and implement a storm water the most common permit mechanism. a location-by-location basis. EPA management program designed to The general permit will explain the envisions that this evaluative process reduce the discharge of pollutants from steps necessary to obtain permit will consider such factors as conditions their MS4 to protect water quality. The authorization. Compliance with the of receiving waters, specific local storm water management program must conditions of the general permit and the concerns, and other aspects included in include the following six minimum series of steps associated with a comprehensive watershed plan. Other measures. identification and implementation of factors may include MS4 size, climate, i. Public Education and Outreach on the minimum control measures will implementation schedules, current Storm Water Impacts. Under today’s satisfy the MEP standard. ability to finance the program, beneficial final rule, operators of small MS4s must Implementation of the MEP standard uses of receiving water, hydrology, implement a public education program under today’s rule will typically require geology, and capacity to perform to distribute educational materials to the the permittee to develop and implement operation and maintenance. community or conduct equivalent appropriate BMPs to satisfy each of the The pollutant reductions that outreach activities about the impacts of required six minimum control represent MEP may be different for each storm water discharges on water bodies measures. small MS4, given the unique local and the steps to reduce storm water In issuing the general permit, the hydrologic and geologic concerns that pollution. The public education NPDES permitting authority will may exist and the differing possible program should inform individuals and establish requirements for each of the pollutant control strategies. Therefore, households about the problem and the minimum control measures. Permits each permittee will determine steps they can take to reduce or prevent typically will require small MS4 appropriate BMPs to satisfy each of the storm water pollution. permittees to identify in their NOI the six minimum control measures through EPA believes that as the public gains BMPs to be performed and to develop an evaluative process. Permit writers a greater understanding of the storm the measurable goals by which may evaluate small MS4 operator’s water program, the MS4 is likely to gain

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Well- clogging storm drains and to auto the small MS4 storm water program. informed citizens can act as formal or garages on the impacts of used oil Accordingly, today’s final rule requires informal educators to further discharges. that the municipal storm water disseminate information and gather EPA received comments from management program must comply with support for the program, thus easing the representatives of State DOTs and U.S. applicable State and local public notice burden on the municipalities to perform Department of Defense (DOD) requirements. Section 122.34(b)(2) all educational activities. installations seeking exemption from recommends a public participation MS4s are encouraged to enter into the public education requirement. process with efforts to reach out and partnerships with their States in While today’s rule does not exempt engage all economic and ethnic groups. fulfilling the public education DOTs and military bases from the user EPA believes there are two important requirement. It may be more cost- education requirement, the Agency reasons why the public should be effective to utilize a State education believes the flexibility inherent in the allowed and encouraged to provide program instead of numerous MS4s Rule addresses many of the concerns valuable input and assistance to the developing their own programs. MS4 expressed by these commenters. MS4’s program. operators are also encouraged to work Certain DOT representatives First, early and frequent public with other organizations (e.g., commented that if their agencies were involvement can shorten environmental, nonprofit and industry not exempt from the user education implementation schedules and broaden organizations) that might be able to measure’s requirements, they should at public support for a program. assist in fulfilling this requirement. least be allowed to count DOT employee Opportunities for members of the public The public education program should education as an adequate substitute. to participate in program development be tailored, using a mix of locally EPA supports the use of existing and implementation could include appropriate strategies, to target specific materials and programs, granted such serving as citizen representatives on a audiences and communities materials and programs meet the rule’s local storm water management panel, (particularly minority and requirement that the MS4 user attending public hearings, working as disadvantaged communities). Examples community (i.e., the public) is also citizen volunteers to educate other of strategies include distributing educated concerning the impacts of individuals about the program, assisting brochures or fact sheets, sponsoring storm water discharges on water bodies in program coordination with other pre- speaking engagements before and the steps to reduce storm water existing programs, or participating in community groups, providing public pollution. volunteer monitoring efforts. Moreover, service announcements, implementing Finally, certain DOD representatives members of the public may be less educational programs targeted at school requested that ‘‘public,’’ as applied to likely to raise legal challenges to a age children, and conducting their installations, be defined as the MS4’s storm water program if they have community-based projects such as storm resident and employee populations been involved in the decision making drain stenciling, and watershed and within the fence line of the facility. EPA process and program development and, beach cleanups. Operators of MS4s may agrees that the education effort should therefore, internalize personal use storm water educational information be directed toward those individuals responsibility for the program provided by the State, Tribe, EPA, or who frequent the federally owned land themselves. environmental, public interest, trade (i.e., residents and individuals who Second, public participation is likely organizations, or other MS4s. Examples come there to work and use the MS4 to ensure a more successful storm water of successful public education efforts facilities). program by providing valuable expertise concerning polluted runoff can be found EPA also received a number of and a conduit to other programs and in many State nonpoint source pollution comments from municipalities stating governments. This is particularly control programs under CWA section that education would be more thorough important if the MS4’s storm water 319. and cost effective if accomplished by program is to be implemented on a The public education program should EPA on the national level. EPA believes watershed basis. Interested stakeholders inform individuals and households that a collaborative State and local may offer to volunteer in the about steps they can take to reduce approach, in conjunction with implementation of all aspects of the storm water pollution, such as ensuring significant EPA technical support, will program, thus conserving limited proper septic system maintenance, best meet the goal of targeting, and municipal resources. ensuring the use and disposal of reaching, specific local audiences. EPA EPA recognizes that there are a landscape and garden chemicals technical support will include a tool number of challenges associated with including fertilizers and pesticides, box which will contain fact sheets, public involvement. One challenge is in protecting and restoring riparian guidance documents, an information engaging people in the public meeting vegetation, and properly disposing of clearinghouse, and training and and program design process. Another used motor oil or household hazardous outreach efforts. challenge is addressing conflicting wastes. Additionally, the program could Finally, EPA received comments viewpoints. Nevertheless, EPA strongly inform individuals and groups on how expressing concern that the public believes that these challenges can be to become involved in local stream and education program simply encourages addressed by use of an aggressive and beach restoration activities as well as the distribution of printed material. EPA inclusive program. Section II.K. activities coordinated by youth service is sensitive to this concern. Upon provides further discussion on public and conservation corps and other evaluation, the Agency made changes to involvement. citizen groups. Finally, materials or the proposal’s language for today’s rule. A number of municipalities sought outreach programs should be directed The language has been changed to clarification from EPA concerning what toward targeted groups of commercial, reflect EPA’s belief that a successful the public participation program must

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The remainder of large and medium MS4s are to include identified as significant sources of the preamble, as well as the Explanatory a program description for effective pollutants to waters of the United Note accompanying the regulatory text, prohibition against non-storm water States). If the operator of the MS4 provide guidance to the MS4s discharges into their storm sewers (see identifies one or more of these concerning what elements a successful 40 CFR 122.26 (d)(1)(v)(B) and categories of sources to be a significant and inclusive program should include. (d)(1)(iv)(B)). Further, EPA believes that contributor of pollutants to the system, EPA will provide technical support as in implementing municipal storm water it could require specific controls for that part of the tool box (i.e., providing management plans under these permits, category of discharge or prohibit the model public involvement programs, large and medium MS4 operators discharges completely. conducting public workshops, etc.) to generally found their illicit discharge Several comments were received on assist MS4 operators meet the intent of detection and elimination programs to the mapping requirements of the this measure. be cost-effective. Properly implemented proposal. Most comments said that more Finally, the Agency encourages MS4s programs also significantly improved flexibility should be given to the MS4s to seek public participation prior to water quality. to determine their mapping needs, and submitting an NOI. For example, public In today’s rule, any NPDES permit that resources could be better spent in participation at this stage will allow the issued to an operator of a regulated addressing problems once the illicit MS4 to involve the public in developing small MS4 must, at a minimum, require discharges are detected. EPA reviewed the BMPs and measurable goals for their the operator to develop, implement and the mapping requirements in the NOI. enforce an illicit discharge detection proposed rule and agrees that some of iii. Illicit Discharge Detection and and elimination program. Inclusion of the information is not necessary in order Elimination. Discharges from small this measure for regulated small MS4s is to begin an illicit discharge detection MS4s often include wastes and consistent with the ‘‘effective and elimination program. Today’s rule wastewater from non-storm water prohibition’’ requirement for large and requires a map or set of maps that show ‘‘illicit’’ discharges. Illicit discharge is medium MS4s. Under today’s rule, the the locations of all outfalls and names defined at 40 CFR 122.26(b)(2) as any NPDES permit will require the operator and locations of receiving waters. discharge to a municipal separate storm of a regulated small MS4 to: (1) Develop Knowing the locations of outfalls and sewer that is not composed entirely of (if not already completed) a storm sewer receiving waters are necessary to be able storm water, except discharges pursuant system map showing the location of all to conduct dry weather field screening to an NPDES permit and discharges outfalls, and names and location of all for non-storm water flows and to resulting from fire fighting activities. As waters of the United States that receive respond to illicit discharge reports from detailed below, other sources of non- discharges from those outfalls; (2) to the the public. EPA recommends that the storm water, that would otherwise be extent allowable under State, Tribal, or operator collect any existing considered illicit discharges, do not local law, effectively prohibit through information on outfall locations (e.g., need to be addressed unless the operator ordinance, or other regulatory review city records, drainage maps, of the MS4 identifies one or more of mechanism, illicit discharges into the storm drain maps), and then conduct them as a significant source of separate storm sewer system and field surveys to verify the locations. It pollutants into the system. EPA’s implement appropriate enforcement will probably be necessary to ‘‘walk’’ Nationwide Urban Runoff Program procedures and actions as needed; (3) (i.e. wade small receiving waters or use (NURP) indicated that many storm develop and implement a plan to detect a boat for larger receiving waters) the water outfalls still discharge during and address illicit discharges, including streambanks and shorelines, and it may substantial dry periods. Pollutant levels illegal dumping, to the system; and (4) take more than one trip to locate all in these dry weather flows were shown inform public employees, businesses, outfalls. A coding system should be to be high enough to significantly and the general public of hazards used to mark and identify each outfall. degrade receiving water quality. Results associated with illegal discharges and MS4 operators have the flexibility to from a 1987 study conducted in improper disposal of waste. determine the type (e.g. topographic, Sacramento, California, revealed that The illicit discharge and elimination GIS, hand or computer drafted) and size slightly less than one-half of the water program need only address the of maps which best meet their needs. discharged from a municipal separate following categories of non-storm water The map scale should be such that the storm sewer system was not directly discharges if the operator of the small outfalls can be accurately located. Once attributable to precipitation runoff (U.S. MS4 identifies them as significant an illicit discharge is detected at an Environmental Protection Agency, contributors of pollutants to its small outfall, it may be necessary to map that Office of Research and Development. MS4: water line flushing, landscape portion of the storm sewer system 1993. Investigation of Inappropriate irrigation, diverted stream flows, rising leading to the outfall in order to locate Pollutant Entries Into Storm Drainage ground waters, uncontaminated ground the source of the discharge. Systems—A User’s Guide. Washington, water infiltration (as defined at 40 CFR Several comments requested DC EPA 600/R–92/238.) A significant 35.2005(20)), uncontaminated pumped clarification of the requirement to portion of these dry weather flows ground water, discharges from potable develop and implement a plan to detect results from illicit and/or inappropriate water sources, foundation drains, air and eliminate illicit discharges. EPA discharges and connections to the conditioning condensation, irrigation recommends that plans include municipal separate storm sewer system. water, springs, water from crawl space procedures for the following: locating Illicit discharges enter the system pumps, footing drains, lawn watering, priority areas; tracing the source of an through either direct connections (e.g., individual residential car washing, illicit discharge; removing the source of wastewater piping either mistakenly or flows from riparian habitats and the discharge; and program evaluation

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If State (i.e., problems areas) for more detailed discharges such as: number of outfalls law prevents political subdivisions from screening of their system based on screened, complaints received and controlling discharges through storm higher likelihood of illicit connections corrected, feet of storm sewers televised, sewers, EPA anticipates common sense (e.g., areas with older sanitary sewer numbers of discharges and quantities of will prevail to provide those MS4 lines), or by conducting ambient flow eliminated, number of dye or operators with the ability to meet the sampling to locate impacted reaches. smoke tests conducted. Appropriate requirements applicable for their Once priority areas are identified, EPA records of such actions should be kept discharges. recommends visually screening outfalls and should be submitted as part of the One comment reinforced the during dry weather and conducting field annual reports for the first permit term, importance of public information and tests, where flow is occurring, of as specified by the permitting authority education to the success of this selected chemical parameters as (reports only need to be submitted in measure. EPA agrees and suggests that indicators of the discharge source. years 2 and 4 in later permits). For more MS4 operators consider a variety of EPA’s manual for investigation of on reporting requirements, see ways to inform and educate the public inappropriate pollutant entries into the § 122.34(g). which could include storm drain storm drainage system (EPA, 1993) EPA received comments regarding an stenciling; a program to promote, suggests the following parameter list: MS4’s legal authority beyond its publicize, and facilitate public reporting specific conductivity, fluoride and/or jurisdictional boundaries to inspect or of illicit connections or discharges; and hardness concentration, ammonia and/ take enforcement against illicit distribution of visual and/or printed or potassium concentration, surfactant discharges. EPA recognizes that illicit outreach materials. Recycling and other and/or fluorescence concentration, flows may originate in one jurisdiction public outreach programs could be chlorine concentration, pH and other and cross into one or more jurisdictions developed to address potential sources chemicals indicative of industrial before being discharged at an outfall. In of illicit discharges, including used sources. The manual explains why each such instances, EPA expects the MS4 motor oil, antifreeze, pesticides, parameter is a good indicator and how that detects the illicit flow to trace it to herbicides, and fertilizers. the information can be used to the point where it leaves their EPA received comments that State determine the type of source flow. The jurisdiction and notify the adjoining DOT’s lack authority to implement this Agency is not recommending that MS4 of the flow, and any other physical measure. EPA believes that most DOTs fluoride and chlorine, generally used to or chemical information. The adjoining can implement most parts of this locate potable water discharges, be MS4 should then trace it to the source measure. If a DOT does not have the addressed under this program, therefore or to the location where it enters their necessary legal authority to implement a short list of parameters may include jurisdiction. The process of notifying any part of this measure, EPA conductivity, ammonia, surfactant and the adjoining MS4 should continue encourages them to coordinate their pH. Some MS4s have found it useful to until the source is located and storm water management efforts with measure for fecal coliform or E. coli in eliminated. In addition, because any the surrounding MS4s and other State their testing program. Observations of non-storm water discharge to waters of agencies. Many DOTs that are regulated physical characteristics of the discharge the U.S. through an MS4 is subject to under Phase I of this program are co- are also helpful such as flow rate, the prohibition against unpermitted permittees with the local regulated MS4. temperature, odor, color, turbidity, discharges pursuant to CWA section 301 Under today’s rule, DOTs can use any floatable matter, deposits and stains, (a), remedies are available under the of the options of § 122.35 to share their and vegetation. federal enforcement provisions of CWA storm water management The implementation plan should also sections 309 and 505. responsibilities. include procedures for tracing the EPA requested and received EPA received comments requesting source of an illicit discharge. Once an comments regarding the prohibition and clarification of various terms such as illicit discharge is detected and field enforcement provision for this ‘‘outfall’’ and ‘‘illicit discharge.’’ One tests provide source characteristics, the minimum measure. Commenters comment asked EPA to reinforce the next step is to determine the actual specifically questioned the proposal that point that a ‘‘ditch’’ could be considered location of the source. Techniques for the operator only has to implement the an outfall. The term ‘‘outfall’’ is defined tracing the discharge to its place of appropriate prohibition and at 40 CFR 122.26(b)(9) as ‘‘a point origin may include: following the flow enforcement procedures ‘‘to the extent source at the point where a municipal up the storm drainage system via allowable under State or Tribal law.’’ separate storm sewer discharges to observations and/or chemical testing in They raised concerns that by qualifying waters of the United States * * *’’. The manholes or in open channels; prohibition and enforcement procedures term municipal separate storm sewer is televising storm sewers; using infrared in this manner, the operator could defined at 40 CFR § 122.26(b)(8) as ‘‘a and thermal photography; conducting altogether ignore this minimum measure conveyance or system of conveyances smoke or dye tests. where affirmative legal authority did not (including roads with drainage systems, The implementation plan should also exist. Comments suggested that EPA municipal streets, catch basins, curbs, include procedures for removing the require States to grant authority to those gutters, ditches, man-made channels, or source of the illicit discharge. The first municipalities where it did not exist. storm drains) * * *’’. Following the step may be to notify the property Other comments, however, stated that logic of these definitions, a ‘‘ditch’’ may owner and specify a length of time for municipalities cannot exercise legal be part of the municipal separate storm eliminating the discharge. Additional authority not granted to them under sewer, and at the point where the ditch notifications and escalating legal actions State law, which varies considerably discharges to waters of the United should also be described in this part of from one State to another. EPA has no States, it would be an outfall. As with the plan. intention of directing State legislatures any determination about jurisdictional Finally, the implementation plan on how to allocate authority and provisions of the CWA, however, final should include procedures for program responsibility under State law. As noted decisions require case specific evaluation and assessment. Procedures above, there is at least one remedy (the evaluations of fact.

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One commenter specifically requested implemented and enforced construction include these sites in its storm water clarification on the relationship between site ordinances effectively reduce these management program. Even if the term ‘‘illicit discharge’’ and non- pollutants. In many areas, however, the requirements for a discharge from a storm water discharges from fire effectiveness of ordinances in reducing given construction site are waived by fighting. The comment suggested that it pollutants is limited due to inadequate the NPDES permitting authority, would be impractical to attempt to enforcement or incomplete compliance however, the regulated small MS4 may determine whether the flow from a with such local ordinances by still chose to control those discharges specific fire (i.e., during a fire) is a construction site operators (Paterson, under the MS4’s construction pollutant significant source of pollution. EPA R.G. 1994. ‘‘Construction Practices: The control program, particularly where intends that MS4s will address all Good, the Bad, and the Ugly.’’ such discharges may cause siltation allowable non-storm water flows Watershed Protection Techniques 1(2)). problems in storm sewers. See Section categorically rather than individually. If Today’s rule requires operators of II.I.1.b for more information on an MS4 is concerned that flows from regulated small MS4s to develop, construction waivers by the permitting fire fighting are, as a category, implement, and enforce a pollutant authority. contributing substantial amounts of control program to reduce pollutants in Some commenters suggested that the pollutants to their system, they could any storm water runoff from proposed construction minimum develop a program to address those construction activities that result in measure requirements went beyond the flows prospectively. The program may land disturbance of 1 or more acres (see permit application requirements include an analysis of the flow from § 122.34(b)(4)). Construction activity on concerning construction for medium several sources, steps to minimize the sites disturbing less than one acre must and large MS4s. In response, EPA has pollutant contribution, and a plan to be included in the program if the made changes to the proposed measure work with the sources of the discharge construction activity is part of a larger so that it more closely resembles the to minimize any adverse impact on common plan of development or sale MS4 permit application requirements in water quality. During the development that would disturb one acre or more. existing regulations. For example, as of such a program, the MS4 may The construction runoff control described below, the Agency revised the determine that only certain types of program of the regulated small MS4 proposed requirements for ‘‘pre- flows within a particular category are a must include an ordinance or other construction review of site management concern, for example, fire fighting flows regulatory mechanism to require erosion plans’’ to require ‘‘procedures for site at industrial sites where large quantities and sediment controls to the extent plan review.’’ of chemicals are present. In this practicable and allowable under State, One commenter expressed concerns example, a review of existing Tribal or local law. The program also that addressing runoff from construction procedures with the fire department must include sanctions to ensure sites within urbanized areas (through and/or hazardous materials team may compliance (for example, non-monetary the small MS4 program) differently from reveal weaknesses or strengths penalties, fines, bonding requirements, construction sites outside urbanized previously unknown to the MS4 and/or permit denials for non- areas (which will not be covered by the operator. compliance). The program must also small MS4 program) will encourage EPA received comments requesting include, at a minimum: requirements for urban sprawl. Today’s rule, together modifications to the rule to include on- construction site operators to implement with the existing requirements, requires site sewage disposal systems (i.e., septic appropriate erosion and sediment all construction greater than or equal to systems) in the scope of the illicit control BMPS, such as silt fences, 1 acre, unless waived, to be covered by discharge program. On-site sewage temporary detention ponds and an NPDES permit whether it is located disposal systems that flow into storm diversions; procedures for site plan inside or outside of an urbanized area drainage systems are within the review by the small MS4 which (see § 122.26(b)(15)). Today’s rule does definition of illicit discharge as defined incorporate consideration of potential not require small MS4s to control runoff by the regulations. Where they are water quality impacts; requirements to from construction sites more stringently found to be the source of an illicit control other waste such as discarded or prescriptively than is required for discharge, they need to be eliminated building materials, concrete truck construction site runoff outside similar to any other illicit discharge washout, chemicals, litter, and sanitary urbanized areas. Therefore, today’s rule source. Today’s rule was not modified waste at the construction site that may imposes no substantively different to include discharges from on-site adversely impact water quality; onsite controls on runoff of storm water sewage disposal systems specifically procedures for receipt and consideration from construction sites in urbanized because those sources are already of information submitted by the public areas than from construction sites within the scope of the existing to the MS4; and procedures for site outside of urbanized areas. definition of illicit discharge. inspection and enforcement of control One commenter recommended that iv. Construction Site Storm Water measures by the small MS4. the small MS4 construction site storm Runoff Control. Over a short period of Today’s rule provides flexibility for water runoff control program address all time, storm water runoff from regulated small MS4s by allowing them storm water runoff from construction construction site activity can contribute to exclude from their construction sites, not just the runoff into the MS4. more pollutants, including sediment, to pollutant control program runoff from The commenter also believed that MS4s a receiving stream than had been those construction sites for which the should provide clear, objective deposited over several decades (see NPDES permitting authority has waived standards for all construction sites. EPA section I.B.3). Storm water runoff from NPDES storm water small construction agrees. Because today’s rule only construction sites can include permit requirements. For example, if the regulates discharges from the MS4, the pollutants other than sediment, such as NPDES permitting authority waives construction pollutant control measure phosphorus and nitrogen, pesticides, permit coverage for storm water only requires small MS4 operators to petroleum derivatives, construction discharges from construction sites less control runoff into its system. As a chemicals, and solid wastes that may than 5 acres in areas where the rainfall practical matter, however, EPA become mobilized when land surfaces erosivity factor is less than 5, then the anticipates that MS4 operators will find are disturbed. Generally, properly regulated small MS4 does not have to that regulation of all construction site

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See section II.D.1 One commenter requested that EPA under § 122.35(b), the permitting of today’s rule. delete the requirement for ‘‘procedures authority may recognize in the MS4’s One commenter stated that there is no for receipt and consideration of permit that another governmental entity, need for penalties at the local level by information submitted by the public’’ or the permitting authority itself, is the small MS4 because the CWA already because it went beyond existing storm responsible for implementing one or imposes sufficient penalties to ensure water requirements. Another commenter more of the minimum measures compliance. EPA disagrees and believes stated that establishing a separate (including construction site storm water that enforcement and compliance at the process to respond to public inquiries runoff control), and not include this local level is both necessary and on a project is a burden to small measure in the small MS4’s permit. In preferable. Examples of sanctions, some communities, especially if the project this case, the other governmental not available under the CWA, include has gone through an environmental entity’s program must satisfy all of the non-monetary penalties, monetary fines, review. One commenter requested requirements of the omitted measure. bonding requirements, and denial of clarification of this provision. EPA has v. Post-Construction Storm Water future or other local permits. retained this requirement in today’s Management in New Development and One commenter recommended that final rule to require some formality in Redevelopment. The NURP study and EPA should not include the requirement the process for addressing public more recent investigations indicate that to control pollutants other than inquiries regarding storm water runoff prior planning and designing for the sediment from construction sites in this from construction activities. EPA does minimization of pollutants in storm measure. EPA disagrees with this not intend that small MS4s develop a water discharges is the most cost- comment. The requirement is to control separate, burdensome process to effective approach to storm water waste that ‘‘may cause adverse impacts respond to every public inquiry. A small quality management. Reducing on water quality.’’ Such wastes may MS4 could, for example, simply log pollutant concentrations in storm water include discarded building materials, public complaints on existing storm after the discharge enters a storm sewer concrete truck washout, chemicals, water runoff problems from system is often more expensive and less pesticides, herbicides, litter, and construction sites and pass that efficient than preventing or reducing sanitary waste. These wastes, when information on to local inspectors. The pollutants at the source. Increased exposed to and mobilized by storm inspectors could then investigate human activity associated with water, can contribute to water quality complaints based on the severity of the development often results in increased impairment. violation and/or priority area. pollutant loading from storm water The proposed rule required One commenter believed that the discharges. If potential adverse water ‘‘procedures for pre-construction review proposed requirement of ‘‘regular quality impacts are considered from the of site management plans.’’ EPA inspections during construction’’ would beginning stages of a project, new requested comment on expanding this require every construction project to be development and redevelopment provision to require both review and inspected more than once by the small provides more opportunities for water approval of construction site storm MS4 during the term of a construction quality protection. For example, water plans. Many commenters project. EPA has deleted the reference to minimization of impervious areas, expressed the concern that review and ‘‘regular inspections.’’ Instead, the small maintenance or restoration of natural approval of site plans is not only costly MS4 will be required to ‘‘develop infiltration, wetland protection, use of and time intensive, but may procedures for site inspection and vegetated drainage ways, and use of unnecessarily delay construction enforcement of control measures.’’ riparian buffers have been shown to projects and unduly burden staff who Procedures could include steps to reduce pollutant loadings in storm administer the local program. In identify priority sites for inspection and water runoff from developed areas. EPA addition, some commenters expressed enforcement based on the nature and encourages operators of regulated small confusion whether EPA proposed pre- extent of the construction activity, MS4s to identify specific problem areas construction review for all site topography, and the characteristics of within their jurisdictions and initiate management plans or only higher soils and receiving water quality. innovative solutions and designs to priority sites. To address these In order to avoid duplication of small focus attention on those areas through comments, and be consistent with the MS4 construction requirements with local planning. permit application requirements for NPDES construction permit In today’s rule at § 122.34(b)(5), larger MS4s, EPA changed ‘‘procedures requirements, today’s rule adds NPDES permits issued to an operator of for pre-construction review of site § 122.44(s) to recognize that the NPDES a regulated small MS4 will require the management plans’’ to ‘‘procedures for permitting authority can incorporate operator to develop, implement, and site plan review.’’ Today’s rule requires qualifying State, Tribal, or local erosion enforce a program to address storm the small MS4 to develop procedures for and sediment control requirements in water runoff from new development and site plan review so as to incorporate NPDES permits for construction site redevelopment projects that result in consideration of adverse potential water discharges. For example, a construction land disturbance of greater than or equal quality impacts. Procedures should site operator who complies with MS4 to one acre, including projects less than include review of site erosion and construction pollutant control programs one acre that are part of a larger sediment control plans, preferably that are referenced in the NPDES common plan of development or sale, before construction activity begins on a construction permit would satisfy the that discharge into the MS4. site. The objective is for the small MS4 requirements of the NPDES permit. See Specifically, the NPDES permit will operator and the construction site section II.I.1.d for more information on require the operator of a regulated small operator to address storm water runoff incorporating qualifying programs by MS4 to: (1) Develop and implement

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This strategy can slow the rate of law; (3) ensure adequate long-term higher density urban areas, and areas runoff, reduce runoff volumes, attenuate operation and maintenance of BMPs; with existing storm sewer infrastructure; peak flows, and encourage filtering and and (4) ensure that controls are in place (3) education programs for developers infiltration of storm water. It can be that would minimize water quality and the public about project designs made an integral part of drainage impacts. EPA intends the term that minimize water quality impacts; planning for any development (Urban ‘‘redevelopment’’ to refer to alterations and (4) other measures such as Drainage and Flood Control District, of a property that change the ‘‘footprint’’ minimization of the percentage of Denver, CO. 1992. Urban Storm of a site or building in such a way that impervious area after development, use Drainage Criteria Manual, Volume 3— results in the disturbance of equal to or of measures to minimize directly Best Management Practices). The Urban greater than 1 acre of land. The term is connected impervious areas, and source Drainage and Flood Control District not intended to include such activities control measures often thought of as manual describes three levels for as exterior remodeling, which would good housekeeping, preventive minimizing DCIAs. At Level 1 all not be expected to cause adverse storm maintenance and spill prevention. impervious surfaces are made to drain water quality impacts and offer no new Detailed examples of non-structural over grass-covered areas before reaching opportunity for storm water controls. BMPs follow. a storm water conveyance system. Level EPA received comments requesting Preserving open space may help to 2 adds to Level 1 and replaces street guidance and clarification of the rule protect water quality as well as provide curb and gutter systems with low- requirements. The scope of the other benefits such as recharging velocity grass-lined swales and pervious comments ranged from general requests groundwater supplies, detaining storm street shoulders. In addition to Levels 1 for more details on how MS4 operators water, supporting wildlife and and 2, Level 3 over-sizes swales and should accomplish the four providing recreational opportunities. configures driveway and street crossing requirements listed above, to specific Although securing funding for open culverts to use grass-lined swales as requests for information regarding space acquisition may be difficult, elongated detention basins. transfer of ownership for structural various funding mechanisms have been Structural BMPs include: (1) Storage controls, as well as ongoing used. New Jersey uses a portion of their practices such as wet ponds and responsibility for operation and State sales tax (voter approved for a ten extended-detention outlet structures; (2) maintenance. By the term year period) as a stable source of filtration practices such as grassed ‘‘combination’’ of BMPs, EPA intends a funding to finance the preservation of swales, sand filters and filter strips; and combination of structural and/or non- historic sites, open space and farmland. (3) infiltration practices such as structural BMPs. For this requirement, Colorado uses part of the proceeds from infiltration basins and infiltration the term ‘‘combination’’ is meant to the State lottery to acquire and manage trenches. emphasize that multiple BMPs should open space. Some local municipalities EPA recommends that small MS4 be considered and adopted for use in use a percentage of the local sales tax operators ensure the appropriate the community. A single BMP generally revenue to pay for open space implementation of the structural BMPs cannot significantly reduce pollutant acquisition (e.g., Jefferson County, CO by considering some or all of the loads because pollutants come from has had an open space program in place following: (1) Pre-construction review of many sources within a community. The since 1977 funded by a 0.50 percent BMP designs; (2) inspections during BMPs chosen should: (1) Be appropriate sales tax). Open space can be acquired construction to verify BMPs are built as for the local community; (2) minimize in the form of: fee simple purchase; designed; (3) post-construction water quality impacts; and (3) attempt to easements; development rights; inspection and maintenance of BMPs; maintain pre-development runoff purchase and sellback or leaseback and (4) sanctions to ensure compliance conditions. In choosing appropriate arrangements; purchase options; private with design, construction or operation BMPs, EPA encourages small MS4 land trusts; impact fees; and land and maintenance (O&M) requirements operators to participate in locally-based dedication requirements. Generally, fee of the program. watershed planning efforts which simple purchases provide the highest EPA cautions that certain infiltration attempt to involve a diverse group of level of development control and systems such as dry wells, bored wells stakeholders. Each new development certainty of preservation, whereas the or tile drainage fields may be subject to and redevelopment project should have other forms of acquisition may provide Underground Injection Control (UIC) a BMP component. If an approach is less control, though they would also program requirements (see 40 CFR Part chosen that primarily focuses on generally be less costly. 144.12.). To find out more about these regional or non-structural BMPs, Cluster development, while allowing requirements, contact your state UIC however, then the BMPs may be located housing densities comparable to Program, or call EPA’s Safe Drinking away from the actual development site conventional zoning practice, Water Hotline at 1–800–426–4791. (e.g., a regional water quality pond). concentrates housing units in a portion In order to meet the third post- Non-structural BMPs are preventative of the total site area which provides for construction requirement (ensuring actions that involve management and greater open space, recreation, stream adequate long-term O&M of BMPs), EPA source controls such as: (1) Policies and protection and storm water control. This recommends that small MS4 operators ordinances that provide requirements type of development, by reducing lot evaluate various O&M management and standards to direct growth to sizes, can protect sensitive areas and agreement options. The most common identified areas, protect sensitive areas result in less impervious surface, as well options are agreements between the

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MS4 operator and another party such as flexibility to develop requirements that develop a program to address discharges post-development landowners (e.g., may be different for redevelopment resulting from new development and homeowners’ associations, office park projects, and may also include redevelopment is essentially a pollution owners, other government departments allowances for alternate or off-site BMPs prevention measure. The Rule provides or entities), or regional authorities (e.g., at certain redevelopment projects. Non- the MS4 operator with flexibility to flood control districts, councils of structural BMPs may be the most determine the appropriate BMPs to government). These agreements appropriate approach for smaller address local water quality concerns. typically require the post-construction redevelopment projects. EPA recognizes that these program goals property owner to be responsible for the EPA received comments requesting may not be applied to every site, and O&M and may include conditions clarification on what is meant by ‘‘pre- expects that MS4s will develop an which: allow the MS4 operator to be development’’ conditions within the appropriate combination of BMPs to be reimbursed for O&M performed by the context of redevelopment. Pre- applied on a site-by-site, regional or MS4 operator that is the responsibility development refers to runoff conditions watershed basis. of the property owner but is not that exist onsite immediately before the vi. Pollution Prevention/Good performed; allow the MS4 operator to planned development activities occur. Housekeeping for Municipal enter the property for inspection Pre-development is not intended to be Operations. Under today’s final rule, purposes; and in some cases specify that interpreted as that period before any operators of MS4s must develop and the property owner submit periodic human-induced land disturbance implement an operation and reports. activity has occurred. maintenance program (‘‘program’’) that In providing the guidance above, EPA EPA received comments on the includes a training component and has intends the requirements in today’s rule guidance language in the proposed rule the ultimate goal of preventing or to be consistent with the permit and preamble which suggest that reducing storm water from municipal application requirements for large MS4s implementation of this measure should operations (in addition to those that for post-construction controls for new ‘‘attempt to maintain pre-development constitute storm water discharges development and redevelopment. MS4 runoff conditions’’ and that ‘‘post- associated with industrial activity). This operators have significant flexibility development conditions should not be measure’s emphasis on proper O&M of both to develop this measure as different than pre-development MS4s and employee training, as appropriate to address local concerns, conditions in a way that adversely opposed to requiring the MS4 to and to apply new control technologies affects water quality.’’ Many comments undertake major new activities, is meant as they become available. Storm water expressed concern that maintaining pre- to ensure that municipal activities are pollution control technologies are development runoff conditions is performed in the most efficient way to constantly being improved. EPA impossible and cost-prohibitive, and minimize contamination of storm water recommends that MS4s be responsive to objected to any reference to ‘‘flow’’ or discharges. these changes, developments or increase in volume of runoff. Other The program must include improvements in control technologies. comments support the inclusion of this government employee training that EPA will provide more detailed language in the final rule. Similar addresses prevention measures guidance addressing the responsibility references in today’s rule relating to pre- pertaining to municipal operations such for long-term O&M of storm water development runoff conditions are as: parks, golf courses and open space controls in guidance materials. The intended as recommendations to maintenance; fleet maintenance; new guidance will also provide information attempt to maintain pre-development construction or land disturbance; on appropriate planning considerations, runoff conditions. With these building oversight; planning; and storm structural controls and non-structural recommendations, EPA intends to water system maintenance. The program controls. EPA also intends to develop a prevent water quality impacts resulting can use existing storm water pollution broad menu of BMPs as guidance to from increased discharges of pollutants, prevention training materials provided ensure flexibility to accommodate local which may result from increased by the State, Tribe, EPA, or conditions. volume of runoff. In many cases, environmental, public interest, or trade EPA received comments suggesting consideration of the increased flow rate, organizations. that requirements for new development velocity and energy of storm water EPA also encourages operators of be treated separately from discharges following development MS4s to consider the following in redevelopment in the rule. The unavoidably must be taken into developing a program: (1) Implement comment stressed that new consideration in order to reduce the maintenance activities, maintenance development on raw land presents discharge of pollutants, to meet water schedules, and long-term inspection fewer obstacles and more opportunities quality standards and to prevent procedures for structural and non- to incorporate elements for preventing degradation of receiving streams. EPA structural storm water controls to water quality impacts, whereas recommends that municipalities reduce floatables and other pollutants redevelopment projects are constrained consider these factors when developing discharged from the separate storm by space limitations and existing their post-construction storm water sewers; (2) implement controls for infrastructure. Another comment management program. reducing or eliminating the discharge of suggested allowing waivers from the Some comments said that the quoted pollutants from streets, roads, highways, redevelopment requirements if the phrases in the paragraph above are municipal parking lots, maintenance redevelopment does not result in directives that imply federal land use and storage yards, waste transfer additional adverse water quality control, which they argue is beyond the stations, fleet or maintenance shops impacts, and where BMPs are not authority of the CWA. EPA recognizes with outdoor storage areas, and salt/ technologically or economically that land use planning is within the sand storage locations and snow feasible. EPA recognizes that authority of local governments. disposal areas operated by the MS4; (3) redevelopment projects may have more EPA disagrees, however, with the adopt procedures for the proper site constraints which narrow the range implication that today’s rule dictates disposal of waste removed from the of appropriate BMPs. Today’s rule any such land use decisions. The separate storm sewer systems and areas provides small MS4 operators with the requirement for small MS4 operators to listed above in (2), including dredge

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EPA Measurable Goals, Section 122.34(d) of adopt procedures to ensure that new disagrees that a requirement to consider today’s rule requires the operator of a flood management projects are assessed such controls will impose considerable regulated small MS4 that wishes to for impacts on water quality and costs. implement a program under § 122.34 to existing projects are assessed for One commenter objected to the identify and submit to the NPDES incorporation of additional water preamble language from the proposal permitting authority a list of the best quality protection devices or practices. suggesting that EPA does not expect the management practices (‘‘BMPs’’) that Ultimately, the effective performance of MS4 to undertake new activity. While it will be implemented for each minimum the program measure depends on the remains the Agency’s expectation that control measure in their storm water proper maintenance of the BMPs, both major new activity will not be required, management program. They also must structural and non-structural. Without the MEP process should drive MS4s to submit measurable goals for the proper maintenance, BMP performance incorporate the measure’s obligations development and implementation of declines significantly over time. into their existing programs to achieve each BMP. The BMPs and the Additionally, BMP neglect may produce the pollutant reductions to the measurable goals must be included health and safety threats, such as maximum extent practicable. either in an NOI to be covered under a structural failure leading to flooding, Certain commenters requested a general permit or in an individual undesirable animal and insect breeding, definition for ‘‘municipal operations.’’ permit application. The operator’s submission must and odors. Maintenance of structural EPA has revised the language to more identify, as appropriate, the months and BMPs could include: replacing upper clearly define municipal operations. years in which the operator will levels of gravel; dredging of detention Questions may remain concerning undertake actions required to ponds; and repairing of retention basin whether discharges from specific implement each of the minimum control outlet structure integrity. Maintenance municipal activities constitute measures, including interim milestones of non-structural BMPs could include discharges associated with industrial and the frequency of periodic actions. updating educational materials activities (requiring NPDES permit The Agency revised references to periodically. authorization according to the EPA emphasizes that programs should ‘‘starting and completing’’ actions from requirements for industrial storm water identify and incorporate existing storm the proposed rule because many actions that apply in that State) or from water practices and training, as well as will be repetitive or ongoing. The non-storm water practices or programs municipal operations (subject only to submission also must identify the that have storm water pollution the controls developed in the MS4 person or persons responsible for prevention benefits, as a means to avoid control program). Even though there implementing or coordinating the small duplication of efforts and reduce overall may be different substantive MS4 storm water program. See costs. EPA recommends that MS4s requirements that apply depending on § 122.34(d). The submitted BMPs and incorporate these new obligations into the source of the discharge, EPA has measurable goals become enforceable their existing programs to the greatest modified the deadlines for permit according to the terms of the permit. extent feasible and urges States to coverage so that all the regulated The first permit can allow the permittee evaluate MS4 programs with municipally owned and operated up to five years to fully implement the programmatic efficiency in mind. EPA sources become subject to permit storm water management program. designed this minimum control measure requirements on the same date. The Several commenters opposed making as a modified version of the permit deadline is the same for permit coverage the measurable goals enforceable permit application requirements for medium for this minimum measure as for permit conditions. Some suggested that a and large MS4s described at 40 CFR coverage for municipally owned/ permittee should be able to change its 122.26(d)(2)(iv), in order to provide operated industrial sources. goals so that BMPs that are not more flexibility for these smaller MS4s. c. Application Requirements functioning as intended can be replaced. Today’s requirements provide for a EPA agrees that a permittee should be consistent approach to control An NPDES permit that authorizes the free to switch its BMPs and pollutants from O&M among medium, discharge from a regulated small MS4 corresponding goals to others that large, and regulated small MS4s. may take the form of either an accomplish the minimum measure or By properly implementing a program, individual permit issued to one or more measures. The permittee is required to operators of MS4s serve as a model for facilities as co-permittees or a general implement BMPs that address the the rest of the regulated community. permit that applies to a group of MS4s. minimum measures in § 122.34(b). If the Furthermore, the establishment of a For reasons of administrative efficiency permittee determines that its original long-term program could result in cost and to reduce the paperwork burden on combination of BMPs are not adequate savings by minimizing possible damage permittees, EPA expects that most to achieve the objectives of the to the system from floatables and other discharges from regulated small MS4s municipal program, the MS4 should debris and, consequently, reducing the will be authorized under general revise its program to implement BMPs need for repairs. permits. These NPDES general permits that are adequate and submit to the EPA received comments requesting will provide specific instructions on permitting authority a revised list of clarification of what this measure how to obtain coverage, including BMPs and measurable goals. EPA requires. Certain municipalities application requirements. Typically, suggests that permits describe the expressed concern that the measure has such application requirements will be process for revising BMPs and the potential to impose significant costs satisfied by the submission of a Notice measurable goals, such as whether the associated with EPA’s requirement that of Intent (NOI) to be covered by the permittee should follow the same operators of MS4s consider general permit. In this section, EPA procedures as were required for the implementing controls for reducing or explains the small MS4 operator’s submission of the original NOI and eliminating the discharge of pollutants application requirements for obtaining whether the permitting authority’s from streets, roads, highways, municipal coverage under a NPDES permit for approval is necessary prior to the parking lots, and salt/sand storage storm water. permittee implementing the revised

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BMPs. The permittee should indicate on made the measurable goals than those on the menu unless a State its periodic report whether any BMPs unenforceable if the menu of BMPs was restricts its permittees to specific BMPs. and measurable goals have been revised not available, but the proposal was To the extent possible, EPA will since the last periodic report. silent as to the enforceability of the develop a menu of BMPs that describes Some commenters expressed concern implementation of BMPs. Today’s rule the appropriateness of BMPs to specific that making the measurable goals clarifies that the operators are not free regions, whether the BMPs have been enforceable would encourage the to do nothing prior to the issuance of a field-tested, and their approximate development of easily attained goals menu of BMPs; they still must make a costs. The menu, however, is not and, conversely, discourage the setting good faith effort to implement the BMPs intended to relieve permittees of the of ambitious goals. Others noted that it designed to comply with each measure. need to implement BMPs that are is often difficult to determine the See § 122.34(d)(2). The operators would appropriate for their specific pollutant reduction that can be achieved not, however, be liable for failure to circumstances. by BMPs until several years after meet its measurable goals if a menu of If there are no known relevant BMPs implementation. Much of the opposition BMPs was not available at the time they for a specific circumstance, a permittee to the enforceability of measurable goals submit their NOI. has the option of developing and appears to have been based on a The proposed rule provision in implementing pilot BMPs that may be mistaken understanding that measurable § 123.35 stated that the ‘‘[f]ailure to better suited to their circumstances. goals must consist of pollutant issue the menu of BMPs would not Where BMPs are experimental, the reduction targets to be achieved by the affect the legal status of the general permittee should consider committing corresponding BMPs. permit.’’ This concept is included in the to measurable goals that address its Today’s rule requires the operator to final rule in § 122.34(d)(2)’s clarification schedule for implementing its selected submit either measurable goals that that the permittee still must comply BMPs rather than goals of achieving serve as BMP design objectives or goals with other requirements of the general specific pollutant reductions. If the that quantify the progress of permit. BMPs implemented by the permittee do implementation of the actions or Unlike the proposed rule, today’s rule not achieve the desired objective, the performance of the permittee’s BMPs. At does not require that each BMP in the permittee may be required to commit to a minimum, the required measurable menu developed by the State or EPA be different or revised BMPs. goals should describe specific actions regionally appropriate, cost-effective As stated in § 123.35(g), EPA is taken by the permittee to implement and field-tested. Various commenters committed to issuing a menu of BMPs each BMP and the frequency and the criticized those criteria as unworkable, prior to the deadline for the issuance of dates for such actions. Although the and one described them as ‘‘ripe for permits. This menu would serve as operator may choose to do so, it is not ambiguity and abuse.’’ Other guidance for all operators of regulated required to submit goals that measure commenters feared that the operators of small MS4s nationwide. After whether a BMP or combination of BMPs regulated small MS4s would never be developing the initial menu of BMPs, is effective in achieving a specific result required to achieve their goals until EPA intends to periodically modify, in terms of storm water discharge menus were developed that were cost- update, and supplement the menu of quality. For example, a measurable goal effective, field-tested and appropriate BMPs based on the assessments of the might involve a commitment to inspect for every conceivable subregion. MS4 storm water program and research. a given number of drainage areas of the While some municipal commenters States may rely on EPA’s menu of BMPs collection system for illicit connections supported the requirement that a menu or issue their own. If States develop by a certain date. The measurable goal of BMPs be made available that their own menus, they would constitute need not commit to achieving a specific included BMPs that had been additional guidance (or perhaps amount of pollutant reduction through determined to be regionally appropriate, requirements in some States) for the the elimination of illicit connections. field-tested and cost-effective, others operators to follow. Several commenters Other measurable goals could include raised concerns that they would be were confused by the proposed rule the date by which public education restricted to a limited menu. Some language that stated that States must materials would be developed, a certain commenters supported such a detailed provide or issue a menu of BMPs and, percentage of the community menu because they thought they would if they fail to do so, EPA ‘‘may’’ do so. participating in a clean-up campaign, only be able to select BMPs that were on Some read this language as not requiring the development of a mechanism to the menu, while others thought that it either EPA or the State to develop the address construction site runoff, and a was the permitting authority’s menu. EPA had intended that it would reduction in the percentage of responsibility to develop BMPs develop a menu and that States could imperviousness associated with new narrowly tailored to their situation. In either provide the EPA developed menu development projects. response, EPA notes that the operators or one developed by the State. To reduce the risk that permittees will will not be restricted to implementing EPA has dropped the proposed develop inadequate BMPs, EPA intends only, or all of, the BMPs included on the language that States ‘‘must’’ develop the to develop a menu of BMPs to assist the menu. Since the menu does not require menu of BMPs. Some commenters operators of regulated small MS4s with permittees to implement the BMPs thought that it was inappropriate to the development of municipal included on the menu, it is also not require States to issue guidance. A programs. States may also develop a necessary to apply the public notice and menu of BMPs issued by either EPA or menu of BMPs. Today’s rule provides other procedures that some commenters a permittee’s State will satisfy the that the measurable goals that thought should be applied to the condition in § 122.34(d) that a demonstrate compliance with the development of the menu of BMPs. regulatory authority provide a menu of minimum control measures in §§ 122.34 The purpose of the BMP menu is to BMPs. A State could require its (b)(3) through (b)(6) do not have to be provide guidance to assist the operators permittees to follow its menu of BMPs met if the State or EPA has not issued of regulated small MS4s with the provided that they are adequate to a menu of BMPs at the time the MS4 development and refinement of their implement § 122.34(b). submits its NOI. Commenters pointed local program, not to limit their options. Several commenters raised concerns out that the proposed rule would have Permittees may implement BMPs other that operators of small MS4s could be

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Should a general permit be of initially developing a program, appropriate to require the following issued before a menu of BMPs is commencing to implement it, and information: a description of the available, the permit writer would have achieving results. EPA notes, however, activities conducted by the applicant the option of delaying the date by which that full implementation of an which require it to obtain an NPDES the identification of the BMPs and appropriate program must occur as permit; the name, mailing address, and measurable goals must be submitted to expeditiously as possible, and not later location of the facility; and up to four the permitting authority until some time than five years. Standard Industrial Classification after a menu of BMPs is available. EPA solicited comment on how an (‘‘SIC’’) codes which best reflect the Several municipal commenters raised NOI form might best be formatted to principal products or services provided concerns that they would begin to allow for measurable goal information by the facility. In response, EPA notes develop a program only to be later told (e.g., through the use of check boxes or that the requirements in § 122.21(f) are by the permitting authority or narrative descriptions) while taking into generic application requirements challenged in a citizen suit that their account the Agency’s intention to applicable to NPDES applicants. With BMPs were inadequate. They expressed facilitate computer tracking. All the exception of the SIC code a need for certainty regarding what their commenters supported the development requirement, EPA believes that they are permit required. Several commenters of a checklist NOI, but most noted that applicable to MS4s. In the SIC code suggested that EPA require permitting there would need to be room for portion of the standard application, the authorities to approve or disapprove the additional information to cover unusual applicant may simply put ‘‘not submitted BMPs and measurable goals. situations. One noted that, while a applicable.’’ EPA disagrees that formal approval or summary of measurable goals might be One commenter asked that EPA disapproval by the permitting authority reduced to one sheet, attachments that clarify whether § 122.21(f)(5)’s is needed. more fully described the program and requirement to indicate ‘‘whether the EPA acknowledges that the lack of a the planned BMPs would be necessary. facility is located on Indian lands,’’ formal approval process does place on EPA agrees that in most cases a referred to tribal lands, Indian country, the permittee some responsibility for ‘‘checklist’’ will not be able to capture or Indian reservations. For some local designing and determining the adequacy the information on what BMPs a governments this is a complex issue of its BMPs. Once the permittee has permittee intends to implement and its with no easy ‘‘yes’’ or ‘‘no’’ answer. See submitted its BMPs to the permitting measurable goals for their the discussion in the Section II.F in the authority as part of its NOI, it must implementation. EPA will continue to proposal to today’s rule regarding what implement them in order to achieve the consider whether to develop a model tribal lands are subject to the federal corresponding measurable goals. EPA NOI form and make it available for trust responsibility for purposes of the does not believe that this results in the permitting authorities that choose to use NPDES program. uncertainty to the extent expressed by it. What will be required on an MS4’s One commenter suggested that the some commenters or unduly expose the NOI, however, is more extensive than application should not have to list the permittee to the risk of citizen suit. If what is usually required on an NOI, so permits and approvals required under the permit is very specific regarding a ‘‘form’’ NOI for MS4s may be § 122.21(f)(6). EPA notes that the what the permittee must do, then the impractical. applicant must only list the uncertainty is eliminated. If the permit ii. Individual Permit Application for a environmental permits that the is less prescriptive, the permittee has § 122.34(b) program. In some cases, an applicant has received that cover the greater latitude in determining for itself operator of a regulated small MS4s may small MS4. The applicant is not what constitutes an adequate program. seek coverage under an individual required to list permits for other A citizen suit could impose liability on NPDES permit, either because it chooses operations conducted by the small MS4 the permittee only if the program that it to do so or because the NPDES operator (e.g., for an operation of an develops and implements clearly does permitting authority has not made the airport or landfill). Again, in most cases not satisfy the requirements of the general permit option available to that the applicant could respond ‘‘not general permit. EPA believes today’s source. For small MS4s that are to applicable’’ to this portion of the approach strikes a balance between the implement a § 122.34(b) program in application. competing goals of providing certainty today’s rule, EPA is promulgating One commenter suggested that the as to what constitutes an adequate simplified individual permit application topographic map requirement of program and providing flexibility to the requirements at § 122.33(b)(2)(i). Under § 122.21(f)(7) was completely different permittees. the simplified individual permit from, and significantly more onerous Commenters were divided on whether application requirements, the operator than, the mapping requirement outlined five years was a reasonable and submits an application to the NPDES in the proposed rule at § 122.34(b)(3)(i). expeditious schedule for a MS4 to permitting authority that includes the EPA agrees and has modified the final implement its program. Some thought information required under § 122.21(f) rule to clarify that a map that satisfies that it was an appropriate amount of and an estimate of square mileage the requirements of § 122.34(b)(3)(i) also time to allow for the development and served by the small MS4. They are also satisfies the map requirements for MS4 implementation of adequate programs. required to supply the BMP and applicants seeking individual permits One questioned whether the permittee measurable goal information required under § 122.33(b)(2)(i). had to be implementing all of its under § 122.34(d). Consistent with CWA EPA is adding a new paragraph to program within that time, and suggested section 308 and analogous State law, the § 122.44(k) to clarify that requirements that there may be cases where a permitting authority could request any to implement BMPs developed pursuant permitting authority would need additional information to gain a better to CWA 402(p) are appropriate permit

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While such conditions pollution associated with urban storm of this rule, the permit will require the could be included under the existing water that will be regulated under municipality/storm sewer operator to provision in § 122.44(k)(3) for ‘‘practices today’s rule. develop a storm water control program. reasonably necessary to achieve effluent Some commenters specifically The rule specifies the components of the limitations and standards or to carry out objected that § 122.34’s minimum control program, which are primarily the purposes and intent of the CWA,’’ measures for small MS4s violate the ‘‘management’-type controls, for EPA believes it is clearer to specifically Tenth Amendment insofar as they example, municipal regulation of third list in § 122.44(k) BMPs that implement require the operators of MS4s to regulate party storm water discharges associated storm water programs in light of the third parties. The minimum measures with construction, as well as frequency with which they are used as include requirements for small MS4 development and redevelopment, when effluent limitations. operators to prohibit certain non-storm those discharges would enter the iii. Alternative Permit Options/Tenth water discharges, control storm water municipal system. Amendment. As an alternative to discharges from construction greater implementing a program that addresses than one acre, and take other actions to Unlike the circumstances reviewed in each of the six minimum measures control third party sources of storm the New York and Printz cases, today’s according to the requirements of water discharges into their MS4s. rule merely applies a generally § 122.34(b), today’s rule provides the Commenters also argued that it was applicable requirement (the CWA operators of regulated small MS4s with inappropriate for EPA to require local permit requirement) to municipal point the option of applying for an individual governments to enact ordinances that sources. The CWA establishes a permit under existing § 122.26(d). See will consume local revenues and put generally applicable requirement to § 122.33(b)(2)(ii). If a system operator local governments in the position of obtain an NPDES permit to authorize does not want to be held accountable for bearing the political responsibility for point source discharge to waters of the implementation of each of the minimum implementing the program. One United States. Because municipalities measures, an individual permit option commenter argued that EPA was own and operate separate storm sewers, under § 122.33(b)(2)(ii) remains prohibited from conditioning the including storm sewers into which third available. (As explained in the next issuance of an NPDES permit upon the parties may discharge pollutants, section of this preamble, § 122.35(b) also small MS4 operators waiving their NPDES permits may require provides an opportunity for relief from constitutional right to be free from such municipalities to control the discharge permit obligations for some of the requirements to regulate third parties. of pollutants into the storm sewers in minimum measures, but that relief The Agency replies to each comment in the first instance. Because NPDES exists within the framework of the turn. permits can impose end-of-pipe minimum measures.) Because the rule does rely on local numeric effluent limits, narrative EPA originally drafted the individual governments—who operate municipal effluent limits in the form of permit application requirements in separate storm sewer systems—to ‘‘management’’ program requirements § 122.26(d) to apply to medium and regulate discharges from third parties are also within the scope of Clean Water large MS4s. Today’s rule abbreviates the into storm sewers, EPA acknowledges Act authority. As noted above, however, individual permit application that the rule implicates the Tenth EPA believes that such narrative requirements for small MS4s. Although Amendment and constitutional limitations are the most appropriate EPA believes that the storm water principles of federalism. EPA disagrees, form of effluent limitation for these management program requirements of however, that today’s rule is types of permits. For municipal separate § 122.34, including the minimum inconsistent with federalism principles. storm sewer permits, CWA section measures, provide the most appropriate [As political subdivisions of States, 402(p)(3)(B)(iii) specifically authorizes means to control pollutants from most municipalities enjoy the same ‘‘controls to reduce pollutants to the small MS4s, the Agency does recognize protections as States under the Tenth maximum extent practicable, including that the operators of some small MS4s Amendment.] management practices, control may prefer more individualized permit The Supreme Court has interpreted techniques and system, design and requirements. Among other possible the Tenth Amendment to preclude engineering methods, and such other reasons, an operator may seek to avoid federal actions that compel States or provisions as the Administrator or the having to ‘‘regulate’’ third parties their political subdivisions to enact or State determines appropriate for the discharging into the separate storm administer a federal regulatory program. control of such pollutants.’’ sewer system. Alternatively, an operator See New York v. United States, 505 U.S. The Agency did not design the may determine that structural controls, 144 (1992); Printz v. United States, 117 minimum measures in § 122.34 to such as constructed wetlands, are more S.Ct. 2365 (1997). The Printz case, ‘‘commandeer’’ state regulatory appropriate or effective to address the however, did acknowledge that the mechanisms, but rather to reduce discharges that would otherwise be restriction does not apply when federal pollutant discharges from small MS4s. addressed under the construction and/ requirements of general applicability— The permit requirement in CWA section or development/redevelopment requirements that regulate all parties 402 is a requirement of general measures. engaging in a particular activity—do not applicability. The operator of a small Some MS4s commenters alleged that excessively interfere with the MS4 that does not prohibit and/or an absolute requirement to implement functioning of State governments when control discharges into its system the minimum measures violates the those requirements are applied to States essentially accepts ‘‘title’’ for those Tenth Amendment to the U.S. (or their political subdivisions). See discharges. At a minimum, by providing Constitution. While EPA disagrees that Printz, 117 S.Ct. at 2383. free and open access to the MS4s that requiring MS4s to implement the Today’s rule imposes a federal convey discharges to the waters of the minimum measures would violate the requirement of general applicability, United States, the municipal storm Constitution, today’s rule does provide namely, the requirement to obtain and sewer system enables water quality small MS4s with the option of comply with an NPDES permit, on impairment by third parties. Section developing more individualized municipalities that operate a municipal 122.34 requires the operator of a measures to reduce the pollutants and separate storm sewer system. By virtue regulated small MS4 to control a third

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Today’s rule Agency concedes that administration of based on the individual permit recognizes that the operators of some a municipal program will consume application information. small MS4s might not have the limited local revenues for For small MS4 operators seeking an authority under State law to implement implementation; but those individual permit, both Part 1 and Part one or more of the measures using, for consequences stem from the municipal 2 of the application requirements in example, an ordinance or other operator’s identity as a permitted sewer § 122.26(d)(1) and (2) are required to be regulatory mechanism. To address these system operator. The Tenth Amendment submitted within 3 years and 90 days of situations, each minimum measure in does not create a blanket municipal the date of publication of this Federal § 122.34(b) that would require the small immunity from generally applicable Register notice. Some of the information MS4 operator to develop an ordinance requirements. Development of a required in Part 1 will necessarily have or other regulatory mechanism states program based on the minimum to be developed by the permit applicant that the operator is only required to measures and implementation of that prior to the development of Part 2 of the implement that requirement to ‘‘the program should not ‘‘excessively application. The permit applicant extent allowable under State, Tribal or interfere’’ with the functioning of should coordinate with its permitting local law.’’ See § 122.34(b)(3)(ii) (illicit municipal government, especially given authority regarding the timing of review discharge elimination), § 122.34(b)(4)(ii) the ‘‘practicability’’ threshold under of the information. (construction runoff control) and CWA section 402(p)(3)(B)(iii). The operators of regulated small MS4s § 122.34(b)(5)(ii) (post-construction As noted above, today’s rule also that apply under § 122.26(d) may apply storm water management). This allows regulated small MS4s to opt out to implement certain of the § 122.34(b) regulatory language does not mean that of the minimum measures approach. minimum control measures, and thereby a operator of a small MS4 with The individual permit option provides focus the necessary evaluation for ordinance making authority can simply for greater flexibility in program additional limitations on alternative fail to pass an ordinance necessary for implementation and also responds to controls to the § 122.34(b) measures that a § 122.34(b) program. The reference to the comment about requiring a the small MS4 will not implement. The ‘‘the extent allowable under * * * local municipal permit applicant’s waiver of permit writer may determine law’’ refers to the local laws of other any arguable constitutional rights. The ‘‘equivalency’’ for some or all of the political subdivisions to which the MS4 individual permit option responds to minimum measures by developing a operator is subject. Rather, a small MS4 questions about the rule’s alleged rough estimate of the pollutant operator that seeks to implement a unconstitutionality by more specifically reduction that would be achieved if the program under section § 122.34(b) may focusing on the pollutants discharged MS4 implemented the § 122.34 omit a requirement to develop an from municipal point sources. Today’s minimum measure and to incorporate ordinance or other regulatory rule gives operators of MS4s the option that pollutant reduction estimate in the mechanism only to the extent its to seek an individual permit that varies small MS4’s individual permit as an municipal charter, State constitution or from the minimum measures/ effluent limitation. The Agency other legal authority prevents the management approach that is otherwise recognizes that, based on current operator from exercising the necessary specified in today’s rule. Even if the information, any such estimates will authority. Where the operator cannot minimum measures approach was probably have a wide range. obtain the authority to implement any constitutionally suspect, a requirement Anticipation of this wide range is one of activity that is only required to ‘‘the that standing alone would violate the reasons EPA believes MS4 operators extent allowable under State, Tribal or constitutional principles of federalism need flexibility in determining the mix local law,’’ the operator may satisfy does not raise concerns if the entity of BMPs (under the minimum measures) today’s rule by administering the subject to the requirement may opt for to achieve water quality objectives. remaining § 122.34(b) requirements. an alternative action that does not raise Therefore, for example, if a system Finally, although today’s rule a federalism issue. operator seeks to employ an alternative provides operators of small MS4s with For municipal system operators who that involves structural controls, wide an option of applying for a permit under seek to avoid third party regulation ranges will probably be associated with § 122.26(d), States authorized to according to all or some of the gross pollutant reduction estimates. administer the NPDES program are not minimum measures, § 122.26(d) Permit writers will undoubtedly required to provide this option. NPDES- requires the operator to submit a develop other ways to ensure that authorized States could require all narrative description of its storm water permit limits ensure reduction of regulated small MS4s to be permitted sewer system and any existing storm pollutants to the maximum extent under the minimum measures water control program, as well as the practicable. management approach in § 122.34 as a monitoring data to enable the permit Small MS4 operators that pursue this matter of State law. Such an approach writer to develop appropriate permit individual permit option do not need to would be deemed to be equally or more conditions. The permit writer can then submit details about their future stringent than what is required by develop permit conditions and program requirements (e.g., the MS4’s today’s rule. See 40 CFR 123.2(i). The limitations that vary from the six future plans to obtain legal authority federalism concerns discussed above do minimum measures prescribed in required by §§ 122.26(d)(1)(ii) and not apply to requirements imposed by a today’s rule. The information will (d)(2)). A small MS4 operator might State on its political subdivisions. enable the permit writer to develop an elect to supply such information if it iv. Satisfaction of Minimum Measure NPDES permit that will result in intends for the permit writer to take Obligations by Another Entity. An pollutant reduction to the maximum those plans into account when operator of a regulated small MS4 may

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Today’s rule provides a the third party failed to perform the sediment control from construction sites variety of means for small MS4 measure consistent with § 122.34(b). will be adequate to satisfy the operators to share responsibility for Under today’s rule, the operator- requirement that each regulated small different aspects of their storm water permittee is relieved from responsibility MS4 have a program to the extent management program. The means by for performance of a measure if the third required by § 122.34(b)(4). For example, which the operators of various MS4s party is an NPDES permittee whose although all NPDES States are required share responsibility may affect who is permit makes it responsible for to issue NPDES permits for construction ultimately responsible for performance performance of the measure (including, activity that disturbs greater than one of the minimum measure and who files for example, a State agency other than acre, the State’s NPDES permit program the periodic reports on the the State agency that issues NPDES will not necessarily be extensive enough implementation of the minimum permits) or if the third party is the to satisfy a regulated small MS4’s measure. Section 122.35 addresses these NPDES permitting authority itself. obligation under § 122.34(b)(4). NPDES issues. The rule describes two different Because the permitting authority is States will not necessarily be variants on third party implementation acknowledging the third party’s implementing all of the required with different consequences if the third responsibility in the permit, elements of that minimum measure, party fails to implement the measure. commenters thought that the MS4 such as procedures for site plan review If the permit covering the discharge operator-permittee should not be in each jurisdiction required to develop from a regulated small MS4 identifies responsible for ensuring that the other a program and procedures for receipt the operator as the entity responsible for entity is implementing the control and consideration of information a particular minimum control measure, measure properly. EPA agrees that the submitted by the public on individual then the operator-permittee remains operator-permittee should not be construction sites. In order for a State responsible for the implementation of conditionally responsible when the erosion and sediment control program that measure even if another entity has requirements are enforceable against to satisfy a small MS4 operator’s agreed to implement the control some other NPDES permittee. If the obligation to implement § 122.34(b)(4), measure. Section 122.35(a). Another third party fails to perform the the State program would have to party may satisfy the operator- minimum measure, the requirements include all of the elements of that permittee’s responsibility by will be enforceable against the third minimum measure. Where the operator-permittee is itself implementing the minimum control party. In addition, the NPDES performing one or more of the minimum measure in a manner at least as stringent permitting authority could reopen the measures, the operator-permittee or prescriptive as the corresponding operator-permittee’s permit under remains responsible for all of the NPDES permit requirement. If the third § 122.62 and modify the permit to make reporting requirements under party fails to do so, the operator- the operator responsible for § 122.34(f)(3). The operator-permittee’s permittee remains responsible for its implementing the measure. A new reports should identify each entity that performance. The operator of the MS4 paragraph has been added to § 122.62 to is performing the control measures should consider entering into an clarify that the permit may be reopened agreement with the third party that within the geographic jurisdiction of the in such circumstances. acknowledges the responsibility to regulated small MS4. If the other entity implement the minimum measure. The Today’s rule also provides that the also operates a regulated MS4 and files operator-permittee’s NOI and its annual operator-permittee is not conditionally reports on the progress of § 122.34(f)(3) reports submitted to the responsible where it is the State NPDES implementation of the measures within NPDES permitting authority must permitting authority itself that fails to the geographic jurisdiction of the MS4, identify the third party that is satisfying implement the measure. The permitting then the operator-permittee need not one or more of the permit obligations. authority does not need to issue a include that same information in its This requirement ensures that the permit to itself (i.e., to the same State own reports. permitting authority is aware which agency that issues the permit) for the If the other entity operates a regulated entity is supposed to implement which sole purpose of relieving the small MS4 MS4 and is performing all of the minimum measures. from responsibility in the event the minimum measures for the permittee, If, on the other hand, the regulated State agency does not satisfy its the permittee is not required to file the small MS4’s permit recognizes that an obligation to implement a measure. EPA reports required by § 122.34(f)(3). This NPDES permittee other than the does not believe that the small MS4 relief from reporting is specified in operator-permittee is responsible for a should be responsible in the situation § 122.35(a). particular minimum control measure, where the NPDES permit issued to the Section 122.35 addresses the concerns then the operator-permittee is relieved small MS4 operator recognizes that the of some commenters who sought relief from the responsibility for State agency that issues the permit is for governmental facilities that are implementing that measure. The responsible for implementing a classified as small MS4s under today’s operator-permittee is also relieved from measure. If the State does fail to rule. These facilities frequently the responsibility for implementing any implement the measure, the State discharge storm water through another measure that the operator’s permit agency could be held accountable for its regulated MS4 and could be regulated indicates will be performed by the commitment in the permit to implement by that MS4’s program. For example, a NPDES permitting authority. Section the measure. Where the State does not State owned office complex that 122.35(b). The MS4 operator-permittee fulfill its responsibility to implement a operates its storm sewer system in an would be responsible for implementing measure, a citizen also could petition urbanized area will be regulated as an the remaining minimum measures. for withdrawal of the State’s NPDES MS4 under today’s rule even though its Today’s final rule differs from the program or it could petition to have the system may be subject to the storm proposed version of § 122.35(b), which MS4’s permit reopened to require the water controls of the municipality in

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68768 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations which it is located. Today’s rule work out the need for such data. If applicable permit rather than the permit specifically revised the definition of necessary, the downstream MS4s might condition requirements of § 122.34 of MS4 to recognize that different levels of want to make such data a condition to today’s rule. The regulated small MS4 government often operate MS4s and that allowing the upstream MS4 to connect that wishes to be a co-permittee must each such separate entity (including the to its system. comply with the applicable federal government) should be v. Joint Permit Programs. Many requirements of § 122.26(d), but would responsible for its discharges. If both commenters supported allowing the not be required to fulfill all the permit MS4s agree, the downstream MS4 can operators of small MS4s to apply as co- application requirements applicable to develop a storm water management permittees so they each would not have medium and large MS4s. Specifically, program that regulates the discharge to develop their own storm water the regulated small MS4 is not required from both MS4s. The upstream small management program. Today’s rule to comply with the application MS4 operator still must submit an NOI specifically allows regulated small requirements of § 122.26(d)(1)(iii) that identifies the entity on which the MS4s to join with either other small (Part 1 source identification), § 122.26 upstream small MS4 operator is relying MS4s regulated under § 122.34(d) or (d)(1)(iv) (Part 1 discharge to satisfy its permit obligations. No with medium and large MS4s regulated characterization), and § 122.26(d)(2)(iii) reports are required from the upstream under § 122.26(d). (Part 2 discharge characterization data). small MS4 operator, but the upstream As is discussed in the previous Furthermore, the regulated small MS4 operator must remain in compliance section, regulated small MS4s may operator could satisfy the requirements with the downstream MS4 operator’s indicate in their NOIs that another in § 122.26(d)(1)(v) (Part 1 management storm water management program. This entity is performing one or more of its programs) and § 122.26(d)(2)(iv) (Part 2 option allows small MS4s to work required minimum control measures. proposed management program) by together to develop one storm water Today’s rule under § 122.33(b)(1) also referring to the adjoining MS4 operator’s management program that satisfies the specifically allows the operators of existing plan. An operator pursuing this permit obligations of both. If they regulated small MS4s to jointly submit option must describe in the permit cannot agree, the upstream small MS4 an NOI. The joint NOI must clearly modification request how the adjoining operator must develop its own program. indicate which entity is required to MS4’s storm water program addresses or As mentioned previously, comments implement which control measure in needs to be supplemented in order to from federal facilities and State each geographic jurisdiction within the adequately address discharges from the organizations that operate MS4s service area of the entire small MS4. MS4. The request must also explain the requested that their permit requirements The operator of each regulated small role of the small MS4 operator in differ from those of MS4s that are MS4 remains responsible for the coordinating local storm water activities political subdivisions of States (cities, implementation of each minimum and describe the resources available to towns, counties, etc.). EPA measure for its MS4 (unless, as is accomplish the storm water acknowledges that there are differences; discussed in the previous section above, management plan. e.g., many federal and State facilities do the permit recognizes that another entity EPA sought comments regarding the not serve a resident population and thus is responsible for completing the appropriateness of the application might require a different approach to measure.) The joint NOI, therefore, is requirements in these subsections of public education. EPA believes, legally equivalent to each entity § 122.26(d). One commenter stated that however, that MS4s owned by State and submitting its own NOI. EPA is, newly regulated smaller MS4s should federal governments can develop storm however, revising the rule language to not be required to meet the existing water management plans that address specifically authorize the joint regulations’ Part II application the minimum measures. Federal and submission of NOIs in response to requirements under § 122.26(d) State owned small MS4s may choose to comments that suggested that such regarding the control of storm water work with adjacent municipally owned explicit authorization might encourage discharges from industrial activity. EPA MS4s to develop a unified plan that programs to be coordinated on a disagrees. The smaller MS4 operators addresses all of the required measures watershed basis. designated for regulation in today’s rule within the jurisdiction of all of the Section 122.33(b)(2)(iii) authorizes may satisfy this requirement by contiguous MS4s. The options in regulated small MS4s to jointly apply referencing the legal authority of the § 122.35 minimize the burden on small for an individual permit to implement already regulated MS4 program to the MS4s that are covered by another MS4’s today’s rule, where allowed by an extent the newly regulated MS4 will program. NPDES permitting authority. The permit rely on such legal authority to satisfy its One commenter recommended that if application should contain sufficient permit requirements. If the smaller MS4 one MS4 discharges into a second MS4, information to allow the permitting operator plans to rely on its own legal the operator of the upstream MS4 authority to allocate responsibility authorities, it must identify it in the should have to provide a copy of its NOI among the parties under one of the two application. If the smaller MS4 operator or permit application to the operator of permitting options in §§ 122.33(b)(2)(i) does not elect to use its own legal the receiving MS4. EPA did not adopt and (ii). authority, they may file an individual this recommendation because the NOI Section 122.33(b)(3) of today’s rule permit application for an alternate and permit application will be publicly also allows an operator of a regulated program under § 122.33(b)(2)(ii). available; but EPA does recommend that small MS4 to join as a co-permittee in The explanatory language in NPDES permitting authorities consider an existing NPDES permit issued to an § 122.33(b)(3) recommends that the it as a possible permit requirement. The adjoining medium or large MS4 or smaller MS4s designated under today’s commenter also suggested that source designated under the existing rule identify how an existing plan monitoring data should be collected by storm water program. This co-permittee ‘‘would need to be supplemented in the upstream MS4 and provided to the option applies only with the agreement order to adequately address your downstream MS4. EPA is not adopting of all co-permittees. Under this co- discharges.’’ One commenter suggested such a uniform monitoring requirement permittee arrangement, the operator of that this must be regulatory language because EPA believes it is more the regulated small MS4 must comply and not guidance. EPA disagrees that appropriate to let the MS4 operators with the terms and conditions of the this needs to be mandatory language.

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Since many of the smaller MS4s implementing portions of its § 122.34(b) (Intergovernmental Task Force on designated today are ‘‘donut holes’’ minimum measures. Monitoring Water Quality. 1995. The within the geographic jurisdiction of an Strategy for Improving Water-Quality d. Evaluation and Assessment already regulated MS4, the larger MS4’s Monitoring in the United States: Final program generally will be adequate to Under today’s rule, operators of Report of the Intergovernmental Task address the newly regulated MS4’s regulated small MS4s are required to Force on Monitoring Water Quality. discharges. The small MS4 applicant evaluate the appropriateness of their Copies can be obtained from: U.S. should consider the adequacy of the identified BMPs and progress toward Geological Survey, Reston, VA.). existing MS4’s program to address the achieving their identified measurable EPA expects that many types of smaller MS4’s water quality needs, but goals. The purpose of this evaluation is entities will have a role in supporting EPA is not imposing specific to determine whether or not the MS4 is group monitoring activities—including requirements. Where circumstances meeting the requirements of the federal agencies, State agencies, the suggest that the existing program is minimum control measures. The NPDES public, and various classes or categories inadequate with respect to the newly permitting authority is responsible for of point source dischargers. Some designated MS4 and the applicant does determining whether and what types of regulated small MS4s might be required not address the issue, the NPDES monitoring needs to be conducted and to contribute to such monitoring efforts. permitting authority must require that may require monitoring in accordance EPA expects, however, that their the existing program be supplemented. with State/Tribe monitoring plans participation in monitoring activities Commenters recommended that the appropriate to the watershed. EPA does will be relatively limited. For purposes application deadline for smaller MS4s not encourage requirements for ‘‘end-of- of today’s rule, EPA recommends that, designated today be extended so that pipe’’ monitoring for regulated small in general, NPDES permits for small MS4s. Rather, EPA encourages existing regulated MS4s would not have MS4s should not require the conduct of permitting authorities to carefully to modify their permit in the middle of any additional monitoring beyond examine existing ambient water quality their permit term, provided that permit monitoring that the small MS4 may be and assess data needs. Permitting renewal would occur within a already performing. In the second and authorities should consider a reasonable time (12 to 18 months) of the subsequent permit terms, EPA expects combination of physical, chemical, and deadline. In response, EPA notes that that some limited ambient monitoring biological monitoring or the use of other today’s rule allows operators of newly might be appropriately required for environmental indicators such as designated small MS4s up to three years perhaps half of the regulated small exceedance frequencies of water quality and 90 days from the promulgation of MS4s. EPA expects that such standards, impacted dry weather flows, today’s rule to submit an application to monitoring will only be done in and increased flooding frequency. identified locations for relatively few be covered under the permit issued to (Claytor, R. and W. Brown. 1996. pollutants of concern. EPA does not an already regulated MS4. The Environmental Indicators to Assess anticipate ‘‘end-of-pipe’’ monitoring permitting authority has a reasonable Storm Water Control Programs and requirements for regulated small MS4s. time after receipt of the application to Practices. Center for Watershed EPA received a wide range of modify the existing permit to include Protection, Silver Spring, MD.) Section comments on this section of the rule. the newly designated source. If an II.L., Water Quality Issues, discusses Some commenters believe that EPA existing MS4’s permit is up for renewal monitoring in greater detail. should require monitoring; others want in the near future, the operator of a As recommended by the a strong statement that the newly newly designated small MS4 may take Intergovernmental Task Force on regulated small MS4s should not be that into account when timing its Monitoring Water Quality (ITFM), the required to monitor. Many commenters application and the NPDES permitting NPDES permitting authority is raised questions about exactly what EPA authority may take that into account encouraged to consider the following expects MS4s to do to evaluate and when processing the application. watershed objectives in determining assess their BMPs. EPA has Another commenter suggested that monitoring requirements: (1) To intentionally written today’s rule to the rule should include a provision to characterize water quality and provide flexibility to both MS4s and allow permit application requirements ecosystem health in a watershed over permitting authorities regarding for smaller MS4s designated today to be time, (2) to determine causes of existing appropriate evaluation and assessment. determined by the permitting authority and future water quality and ecosystem Permitting authorities can specify to account for the particular needs/ health problems in a watershed and monitoring or other means of evaluation wants of an already regulated MS4 develop a watershed management when writing permits. If additional operator. EPA does not believe that the program, (3) to assess progress of requirements are not specified, MS4s regulations should specifically require watershed management program or can decide what they believe is the most this approach. When negotiating effectiveness of pollution prevention appropriate way to evaluate their storm whether to include a newly designated and control practices, and (4) to support water management program. As MS4 in its program, the already documentation of compliance with mentioned above, EPA expects that the regulated MS4 operator may require the permit conditions and/or water quality necessity for monitoring and its extent newly designated MS4’s operator to standards. With these objectives in may change from permit cycle to permit provide any information that is mind, the Agency encourages cycle. This is another reason for making necessary. participation in group monitoring the evaluation and assessment rule The co-permitting approach allows programs that can take advantage of requirements very flexible. small MS4s to take advantage of existing existing monitoring programs i. Recordkeeping. The NPDES programs to ease the burden of creating undertaken by a variety of governmental permitting authority is required to their own programs. The operators of and nongovernental entities. Many include at least the minimum regulated small MS4s, however, may States may already have a monitoring appropriate recordkeeping conditions in find it simpler to apply for a program program in effect on a watershed basis. each permit. Additionally, the NPDES under today’s rule, and to identify the The ITFM report is included in the permitting authority can specify that medium or large MS4 operator that is docket for today’s rule permittees develop, maintain, and/or

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68770 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations submit other records to determine The NPDES permitting authority is form of effluent limitations to satisfy compliance with permit conditions. The encouraged to provide a brief two-page technology requirements and water MS4 operator must keep these records reporting format to facilitate compiling quality-based requirements in MS4 for at least 3 years but is not required and analyzing the data from submitted permits (see the introduction to Section to submit records to the NPDES reports. EPA does not believe that II.H.3, Municipal Permit Requirements, permitting authority unless specifically submittal of a brief annual report of this Section II.H.3.h, Reevaluation of Rule, directed to do so. The MS4 operator nature is overly burdensome, and has and the discussion of the Interim must make the records, including the not changed the required reporting time Permitting Policy in Section II.L.1. storm water management program, frame from the proposal. The permitting below). available to the public at reasonable authority will use the reports in f. Enforceability times during regular business hours (see evaluating compliance with permit 40 CFR 122.7 for confidentiality conditions and, where necessary, will NPDES permits are federally provision). The MS4 operator is also modify the permit conditions to address enforceable. Violators may be subject to able to assess a reasonable charge for changed conditions. the enforcement actions and penalties copying and to establish advance notice iii. Permit-As-A-Shield. Section described in CWA sections 309, 504, requirements for members of the public. 122.36 describes the scope of and 505 or under similar water EPA received a comment that authorization (i.e. ‘‘permit-as-a-shield’’) pollution enforcement provisions of questioned EPA’s authority to require under an NPDES permit as provided by State, tribal or local law. Compliance MS4s to make their records available to section 402(k) of the CWA. Section with a permit issued pursuant to section the public. EPA disagrees with the 402(k) provides that compliance with an 402 of the Clean Water Act is deemed commenter and believes that the CWA NPDES permit is deemed compliance, compliance, for purposes of sections does give EPA the authority to require for purposes of enforcement under CWA 309 and 505, with sections 301, 302, that MS4 records be available. It is also sections 309 and 505, with CWA 306, 307, and 403 (except any standard more practical for the public to request sections 301, 302, 306, 307, and 403, imposed under section 307 for toxic records directly from the MS4 than to except for any standard imposed under pollutants injurious to human health). request them from EPA who would then section 307 for toxic pollutants g. Deadlines make the request to the MS4. Based on injurious to human health. comments, EPA revised the proposed EPA’s Policy Statement on Scope of Today’s final rule includes rule so as not to limit the time for Discharge Authorization and Shield ‘‘expeditious deadlines’’ as directed by advance notice requirements to 2 Associated with NPDES Permits, CWA section 402(p)(6). In proposed business days. originally issued on July 1, 1994, and § 122.26(e), the permit application for ii. Reporting. Under today’s rule, the revised on April 11, 1995, provides the ‘‘ISTEA’’ facilities was maintained operator of a regulated small MS4 is additional information on this matter. as August 7, 2001 and the permit required to submit annual reports to the application deadline for storm water e. Other Applicable NPDES NPDES permitting authority for the first discharges associated with other Requirements permit term. For subsequent permit construction activity was established as terms, the MS4 operator must submit Any NPDES permit issued to an 3 years and 90 days from the final rule reports in years 2 and 4 unless the operator of a regulated small MS4 must date. In proposed § 122.33(c)(1), NPDES permitting authority requires also include other applicable NPDES operators of regulated small MS4s were more frequent reports. EPA received permit requirements and standard required to seek permit coverage within several comments supporting this conditions, specifically the applicable 3 years and 90 days from the date of timing for report submittal. Other requirements and conditions at 40 CFR publication of the final rule. In commenters suggested that annual 122.41 through 122.49. Reporting proposed § 122.33(c)(2), operators of reports during the first permit cycle are requirements for regulated small MS4s regulated small MS4s designated by the too burdensome and not necessary. EPA are governed by § 122.34 and not the NPDES permitting authority on a local believes that annual reports are needed existing requirements for medium and basis under § 122.32(a)(2) must seek during the first 5-year permit term to large MS4s at § 122.42(c). In addition, coverage under an NPDES permit within help permitting authorities track and the NPDES permitting authority is 60 days of notice, unless the NPDES assess the development of MS4 encouraged to consult the Interim permitting authority specifies a later programs, which should be established Permitting Approach, issued on August date. by the end of the initial term. 1, 1996. The discussion on the Interim In order to increase the clarity of Information contained in these reports Permitting Approach in Section II.L.1, today’s final rule, EPA has changed the can also be used to respond to public Water Quality Based Effluent Limits, location of some of the above inquiries. provides more information. The requirements. All application deadlines The report must include (1) the status provisions of §§ 122.41 through 122.49 for both Phase I and Phase II are now of compliance with permit conditions, establish permit conditions and listed or referenced in § 122.26(e). an assessment of the appropriateness of limitations that are broadly applicable Section 122.26(e)(1) contains the identified BMPs and progress toward to the entire range of NPDES permits. deadlines for storm water associated achieving measurable goals for each of These provisions should be interpreted with industrial activity. Paragraph (i) the minimum control measures, (2) in a manner that is consistent with has been changed to correct a results of information collected and provisions that address specific classes typographical error. Paragraph (ii) has analyzed, including monitoring data, if or categories of discharges. For example, been revised to reflect the changed any, during the reporting period, (3) a § 122.44(d) is a general requirement that application date for ‘‘ISTEA’’ facilities. summary of what storm water activities each NPDES permit shall include (See discussion in section I.3, ISTEA the permittee plans to undertake during conditions to meet water quality Sources). The application deadline for the next reporting cycle, and (4) a standards. This requirement will be met storm water discharges associated with change in any identified measurable by the specific approach outlined in other construction activity is now in a goal(s) that apply to the program today’s rule for the implementation of new § 122.26(e)(8). The application elements. BMPs. BMPs are the most appropriate deadline for regulated small MS4s

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Discharges Associated with Small designated under § 122.32(a)(1) are permitting authority could take several Construction Activity allowed up to 3 years and 90 days to years to develop designation criteria. Section 122.26(b)(15) of today’s rule submit a permit application. Operators EPA has decided that the application designates certain construction of regulated small MS4s that choose to time frame for these facilities should be activities for regulation as ‘‘storm water be a co-permittee with an adjoining MS4 consistent with the 180 days allowed for discharges associated with small with an existing NPDES storm water facilities designated under construction activity.’’ Specifically, permit must apply for a modification of §§ 122.26(a)(9)(i)(C) and (D). Section storm water discharges from that permit within the same time frame. 122.33(c)(2) of today’s final rule construction activity equal to or greater Several commenters stated that 90 days contains the modified time frame of 180 than 1 acre and less than 5 acres are was not adequate time to submit an days to apply for coverage. NOI. This might be true if facilities did automatically designated except in not start developing their storm water h. Reevaluation of Rule those circumstances where the operator program until publication of their The municipal caucus of the Storm (i.e., person responsible for discharges general permit. In fact, municipalities Water Phase II FACA Subcommittee that might occur) certifies to the should start developing their storm asked EPA to demonstrate its permitting authority that one of two water program upon publication of commitment to revisit the municipal specific waiver circumstances today’s final rule, if they have not requirements of today’s rule and make (described in section b. below) applies. already done so. Municipalities that are changes where necessary after Sites below one acre may be designated uncertain if they fall within the evaluating the storm water program and under § 122.26(b)(15)(ii) where urbanized area should ask their researching the effectiveness of necessary to protect water quality. permitting authority. EPA believes that municipal BMPs. In § 122.37 of today’s Today’s rule regulates these municipalities should not automatically final rule, EPA commits to revisiting the construction-related storm water take three years and 90 days to develop regulations for the municipal storm sources under CWA section 402(p)(6) to a program and submit their NOI. Three water discharge control program after protect water quality rather than under years is the maximum amount of time completion of the first two permit terms. CWA section 402(p)(2). Designation to issue a general permit. MS4s that are EPA intends to use this time to work under 402(p)(6) gives States and EPA automatically designated under today’s closely with stakeholders on research the flexibility to waive the permit rule may have less than 3 years and 90 efforts. Gathering and analyzing data requirement for construction activity days if the permitting authority issues a related to the storm water program, that is not likely to impair water quality, permit that requires submission of NOIs including data regarding the and to designate additional sources before that time. EPA encourages States effectiveness of BMPs, is critical to below one acre that are likely to cause to modify their NPDES program to EPA’s storm water program evaluation. water quality impairment. Thus, the one include storm water and issue their EPA does not intend to change today’s acre threshold of today’s rule is not an permits as soon as possible. It is NPDES municipal storm water program absolute threshold like the five acre important for permitting authorities to until the end of this period, except threshold that applies under the existing keep their municipalities informed of under the following circumstances: a storm water rule. their progress in developing or court decision requires changes; a Today’s rule regulating certain storm modifying their NPDES storm water technical change is necessary for water discharges from construction requirements. implementation; or the CWA is activity disturbing less than 5 acres is EPA recognizes that MS4s brought modified, thereby requiring changes. consistent with the 9th Circuit remand into the program due to the 2000 Census After careful analysis, EPA might also in NRDC v. EPA, 966 F.2d 1292 (9th Cir. calculations do not have as much time consider changes from consensus-based 1992). In that case, the court remanded to develop a program as those already stakeholder requests regarding portions of the existing storm water designated from the 1990 Census. requirements applicable to newly regulations related to discharges from However, the official Bureau of the regulated MS4s. EPA will apply the construction sites. The existing Phase I Census urbanized area calculation for August 1, 1996, Interim Permitting regulations define ‘‘storm water the 2000 Census is expected to be Approach to today’s program during discharges associated with industrial published in the Federal Register in the this interim period and encourages all activity’’ to include storm water spring of 2002, which should give the permitting authorities to use this discharges from construction sites potentially affected MS4s adequate time approach in municipal storm water disturbing 5 acres or more of total land to prepare for compliance under the permits for newly regulated MS4s and area (see 40 CFR 122.26(b)(14)(x)). In its applicable permit. However, if the in determining MS4 permit decision, the court concluded that the 5- publication of this information is requirements under a TMDL approach. acre threshold was improper because delayed, MS4s in newly designated After careful consideration of the data, the Agency had failed to identify urbanized areas will have 180 days from EPA will make modifications as information ‘‘to support its perception the time the new designations are necessary. that construction activities on less than published to submit an NOI, consistent EPA received comments that 5 acres are non-industrial in nature’’ with the time frame for other regulated supported waiting two permit cycles (966 F.2d at 1306). The court remanded MS4s that are designated after before re-evaluating the rule and other the exemption to EPA for further promulgation of the rule. comments that requested re-evaluation proceedings (966 F.2d at 1310). EPA’s The proposed application deadline for much sooner. EPA anticipates two full objectives in today’s action include an MS4s designated under § 122.32(a)(2) permit cycles are necessary to obtain effort to (1) address the 9th Circuit

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68772 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations remand to reconsider regulation of waters of the United States through a construction activity is a significant storm water discharges from discernible, confined, discrete water quality problem nationwide. construction activities that disturb less conveyance. ‘‘Sheet flow’’ runoff from a Section I.B.3, Construction Site Runoff, than 5 acres of land, (2) address water small construction site would not result provides a detailed discussion of quality concerns associated with such in a point source discharge unless and adverse water quality impacts resulting activities, and (3) balance conflicting until it channelized. As the amount of from construction site storm water recommendations and concerns of disturbed land surface decreases, discharges. EPA is regulating storm stakeholders in the regulation of precipitation is less likely to channelize water discharges from construction additional construction activity. and create a ‘‘point source’’ discharge activity disturbing between 1 and 5 EPA responded to the Ninth Circuit’s (assuming the absence of steep slopes or acres because the cumulative impact of decision by designating discharges from other factors that lead to increased many sources, and not just a single construction activities that disturb channelization). Categorical designation identified source, is typically the cause between 1 and 5 acres as ‘‘discharges of very small sites may create confusion for water quality impairments, associated with small construction about applicability of the NPDES particularly for sediment-related water activity’’ under CWA section 402(p)(6), permitting program to those sites. EPA’s quality standards. rather than as ‘‘discharges associated one acre threshold reflects, in part, the Several commenters requested that with industrial activity’’ under CWA need to recognize that smaller sites are EPA regulate discharges from small section 402(p)(2)(B). Although a size less likely to result in point source construction activity as ‘‘discharges criterion alone may be an indicator of discharges. Of course, the NPDES associated with industrial activity’’ whether runoff from construction sites permitting authority could designate under CWA 402(p)(4) and not, as between 1 and 5 acres is ‘‘associated smaller sites (below one acre, assuming proposed, as ‘‘storm water discharges with industrial activity,’’ the Agency is point source discharges occur from the associated with other activity’’ under instead relying on a size threshold in smaller designated sites) for regulation CWA 402(p)(6). EPA is regulating tandem with provisions that allow for if a watershed or other local assessment discharges from small construction sites designations and waivers based on indicated the need to do so. The Phase as ‘‘small construction activity’’ under potential for ‘‘predicted water quality II rule includes this designation the authority of CWA section 402(p)(6), impairments’’ to regulate construction authority at 40 CFR 122.26(a)(9)(i)(D) rather than section 402(p)(4), to ensure sites between 1 and 5 acres under CWA and (b)(15)(ii). that regulation of these sources is water section 402(p)(6). This approach was The one acre threshold also provides quality-sensitive. CWA section 402(p)(6) chosen by the Agency for the sake of an administrative tool for more easily affords the opportunity for designations simplicity and certainty and, most identifying those sites that are identified and waivers of sources based on importantly, to protect water quality for coverage by the rule (but may receive potential for ‘‘predicted water quality consistent with the mandate of CWA a waiver) and those that are not impairments.’’ Regulation of storm section 402(p)(6). Today’s rule also automatically covered (but may be water ‘‘associated with industrial includes extended application deadlines designated for inclusion). Although all activity’’ does not necessarily focus for this new category of dischargers construction sites less than five acres regulation to protect water quality. under the authority of CWA section could have a significant water quality a. Scope 402(p)(6) (see § 122.26(e)(8) of today’s impact cumulatively, EPA is rule). automatically designating for permit The definition of ‘‘storm water In today’s rule, EPA is regulating coverage only those storm water discharges associated with small storm water discharges from additional discharges from construction sites that construction activity’’ includes construction sites to better protect the disturb land equal to or greater than one discharges from construction activities, Nation’s waters, while remaining acre. Categorical regulation of such as clearing, grading, and sensitive to a concern that the Agency discharges from construction below this excavating activities, that result in the should not regulate discharges from one acre threshold would overwhelm disturbance of equal to or greater than construction sites that might not or do the resources of permitting authorities 1 acre and less than 5 acres (see not have adverse water quality impacts. and might not yield corresponding § 122.26(b)(15)(i)). Such activities could EPA believes that today’s rule will water quality benefits. Construction include: road building; construction of successfully accomplish this objective activities that disturb less than one acre residential houses, office buildings, or by establishing a 1-acre threshold make up, in total, a very small industrial buildings; or demolition nationwide that includes the flexibility percentage of the total land disturbance activity. The definition of ‘‘storm water to allow the permitting authority to both from construction nationwide. The one discharges associated with small waive requirements for discharges from acre threshold is reasonable for construction activity’’ also includes any sites that are not expected to cause accomplishing the water quality goals of other construction activity, regardless of adverse water quality impacts and to CWA section 402(p)(6) because it results size, designated based on the potential designate discharges from sites below 1- in 97.5% of the total acreage disturbed for contribution to a violation of a water acre based on adverse water quality by construction being designated for quality standard or for significant impacts. coverage by the NPDES storm water contribution of pollutants to waters of In addition to the diminishing water program, while excluding from the United States (§ 122.26(b)(15)(ii)). quality benefits of regulating all sites automatic coverage the numerous This designation is made by the below one acre, the Agency relied on smaller sites that represent 24.7% of the Director, or in States with approved practical considerations in establishing total number of construction sites. NPDES programs, either the Director or a one acre threshold and not setting a Some commenters believed that EPA the EPA Regional Administrator. lower threshold. Regardless of the has not adequately identified water For the purposes of today’s rule, the threshold established by EPA, a NPDES quality problems associated with storm definition of ‘‘storm water discharges permit can only be required if a water discharges from construction associated with small construction construction site has a point source activity disturbing less than five acres. activity’’ includes discharges from discharge. A point source discharge Other commenters believed that storm activities disturbing less than 1 acre if means that pollutants are added to water discharges from small that construction activity is part of a

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‘‘larger common plan of development or however, that the intensity of activity construction industry to implement the sale’’ with a planned disturbance of occurring on-site would be a very program to protect water quality in the equal to or greater than 1 acre of land. difficult condition to quantify. first place. A ‘‘larger common plan of development Many commenters requested that EPA One commenter stated a need to or sale’’ means a contiguous area where maintain the 5 acre threshold from the clarify whether routine road multiple separate and distinct existing regulations, which include maintenance is considered construction construction activities are planned to opportunities for site-specific activity for the purpose of today’s rule. occur at different times on different designation, as the regulatory scope for The NPDES general permit for schedules under one plan, e.g., a regulating storm water from discharges from construction sites larger housing development of five 1⁄4 acre lots construction sites, i.e., that the Agency than 5 acres defined ‘‘commencement of (§ 122.26(b)(15)(i)). not automatically regulate storm water construction’’ as the initial disturbance In addition to the regulatory text for discharges from sites less than 5 acres. of soils associated with clearing, smaller construction, the Agency is also Several commenters wanted grading, or excavating activities or other revising the existing text of construction requirements to be applied construction activities (63 FR 7913). For § 122.26(b)(14)(x) to clarify EPA’s to sites smaller than 1 acre, while some construction sites disturbing less than 5 intention regarding construction commenters suggested alternative acres, EPA does not consider projects involving a larger common plan thresholds of 2 or 3 acres. The rest of the construction activity to include routine of development or sale ultimately commenters supported the 1 acre maintenance performed to maintain the disturbing 5 or more acres. Operators of threshold. None of the commenters original line and grade, hydraulic such sites are required to seek coverage presented any data or rationales to capacity, or original purpose of the under an NPDES permit regardless of support a specific size threshold. facility. the number of lots in the larger plan EPA examined alternative size Two commenters believed that the because designation for permit coverage thresholds, including 0.5 acre, 1 acre, 2 Multi-Sector General Permit for storm is based on the total amount of land area acres and 5 acres. EPA had difficulty water discharges from industrial to be disturbed under the common plan. evaluating the alternative size activities (MSGP) (60 FR 50804) already This designation attempts to address the thresholds because, while directly applies to storm water discharges from potential cumulative effects of proportional to the size of the disturbed construction activities at oil and gas numerous construction activities site, the water quality threat posed by exploration and production sites and concentrated in a given area. discharges from construction sites of asked for a clarification on this issue. Several commenters asked that EPA differing sizes varies nationwide, Commenters also requested a single allow the permitting authority to set the depending on the local climatological, general permit to authorize both appropriate size threshold based on geological, geographical, and industrial storm water discharges and water quality studies. While EPA agrees hydrological influences. In order to construction site discharges which that location-specific water quality ensure improvements in water quality occur at the same industrial site. studies provide an ideal information nationwide, however, today’s rule does Currently, when construction activity base from which to make regulatory not allow various permitting authorities disturbing more than 5 acres occurs on decisions, today’s rule establishes a to establish different size thresholds an industrial site covered by the MSGP, default standard for regulation in the except based on the waiver and authorization under a separate NPDES absence of location-specific studies. The designation provisions of the rule. EPA construction permit is needed because rule does allow for deviation from the believes that the water quality impact the MSGP does not include the default standard through additional from small construction sites is as high ‘‘construction’’ industrial sector. While designations and waivers, however, as or higher than the impact from larger the MSGP does address sediment and when supported by location-specific sites on a per acre basis. By selecting the erosion control, it is not as specific as water quality information. The rule 1 acre size threshold and coupling it the NPDES general permit for storm codifies the ability of permitting with waivers and additional water discharges from construction authorities to provide waivers for sites designations, EPA is seeking to activities disturbing more than 5 acres. greater than or equal to one acre (the standardize improvement of water Though permitting authorities could default standard) and designate quality on a national basis while conceivably develop a single general additional discharges from small sites providing permitting authorities with permit to authorize storm water below one acre when location-specific the opportunity to designate those discharges associated with construction information suggests that the default 1 unregulated activities causing water activity at these industrial facilities, the acre standard is either unnecessary quality impairments regardless of site commenter’s request is not addressed by (waivers) or too limited (designations) to size, as well as to waive requirements today’s rulemaking. When today’s rule protect water quality. when information demonstrates that is implemented through general permits Some commenters wanted EPA to regulation is unnecessary. (to be issued later), the permitting base the regulation of storm water EPA recognizes that the size criterion authority will have discretion whether discharges from construction sites not alone may not be the most ideal or not to incorporate the permit only on size, but also on the duration predictor of the need for regulation, but requirements for both the industrial and intensity of activity occurring on effective protection of water quality storm water discharges and construction the site. EPA believes that a national 1- depends as much on simplicity in site storm water discharges into a single acre threshold, in combination with implementation as it does on the general permit. This type of request waivers and additional designations, is scientific information underlying the should be addressed to the permitting the most effective and simplest way to regulatory criteria. The default size authority. address adverse water quality impacts criterion of 1 acre will ensure protection One commenter suggested that from storm water from small against adverse water quality impacts discharges from small construction sites construction sites. Moreover, as from storm water from small should be regulated through a ‘‘self- discussed below, the waiver for rainfall construction sites while not implementing rule’’ approach. While erosivity does account for projects of overburdening the resources of today’s rule is not a self-implementing limited duration. EPA believes, permitting authorities and the rule, it does add § 122.28(b)(2)(v), which

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68774 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations gives the permitting authority the information submitted by the public on contributions from all sources, and a discretion to authorize a construction individual construction sites in each margin of safety. The Agency envisions general permit for sites less than 5 acres jurisdiction required to be covered by an equivalent analysis that would without submitting a notice of intent. the program. demonstrate that water quality is not threatened by storm water discharges Such non-registration general permits b. Waivers function similarly to self-implementing from small construction activity. This rules, but are, in fact, permits. Today’s Under § 122.26(b)(15)(i) of today’s waiver is discussed further below in the rule will be implemented through rule, NPDES permitting authorities may sections titled TMDL Waiver and Water NPDES permits rather than self- waive today’s requirement for Quality Issues. implementing regulations to capitalize construction site operators to obtain a The proposed rule included a waiver on the compliance, tracking, permit in two circumstances. The first based on ‘‘low predicted soil loss.’’ This enforcement, and public participation waiver is intended to apply where little waiver provision would have been associated with NPDES permits (see or no rainfall is expected during the applicable on a case-by-case basis where discussion in section II.C). period of construction. The second the annual soil loss rate for the period waiver may be granted when a TMDL or Other commenters believed that only of construction for a site, using the equivalent analysis indicates that the permitting authority should regulate Revised Universal Soil Loss Equation controls on construction site discharges construction site storm water discharges (RUSLE), would be less than 2 tons/ are not needed to protect water quality. (under a NPDES permit) and that a acre/year. The annual soil loss rate of The first waiver is based on ‘‘low less than 2 tons/acre/year would be small MS4 operator’s regulation of predicted rainfall erosivity’’ which can calculated through the use of the RUSLE storm water discharges associated with be found using tables of rainfall-runoff equation, assuming the constants of no construction (under the small MS4 erosivity (R) values published for each ground cover and no runoff controls in NPDES storm water program) is region in the U.S. R factors are place. redundant. EPA disagrees that control published in the U.S. Department of Several commenters found the low measure implementation by the NPDES Agriculture (USDA) Agricultural soil loss waiver too complex and authority and the small MS4 operator is Handbook 703 (Renard, K.G., Foster, impractical, and stated that expertise is redundant. To the extent the two efforts G.R., Weesies, G.A., McCool, D.K., and not available at the local level to prepare overlap, today’s rule provides for D.C. Yoder. 1997. Predicting Soil and evaluate eligibility for the waiver. consolidation and coordination of Erosion by Water: A Guide to Another commenter questioned whether substantive requirements via Conservation Planning with the Revised two tons/acre/year was an appropriate incorporation by reference permitting. Universal Soil Loss Equation (RUSLE). threshold for predicting adverse water Small MS4s operators may choose to U.S. Department of Agriculture quality impacts. Two other commenters impose more prescriptive requirements Handbook 703). The R factor varies said that RUSLE was never intended to than an NPDES permitting authority based on the time during the year when predict off-site impacts and is not an based on localized water quality needs. construction activity occurs, where in indicator of potential harm to water In those cases, EPA intends that the the country it occurs, and how long the quality. EPA agrees with the substantive requirements from the small construction activity lasts. The commenters on the difficulty associated MS4 program should apply as the permitting authority may determine, with determining and implementing NPDES permit requirements for the using Handbook 703, which times of this waiver. Most construction site construction site discharger. In cases year, if any, the waiver opportunity is operators are not familiar with the where a small MS4 program does not available for construction activity. EPA RUSLE program, and the potential prioritize and focus on storm water from will provide assistance either through burden on the permitting authority, construction sites (beyond the small computer programs or the World Wide construction industry, USDA’s Natural MS4 minimum control measure in Web on how to determine whether this Resources Conservation Service and today’s rule, which does not require the waiver applies for a particular conservation districts probably would small MS4 operator to control geographic area and time period. have been significant. The Agency has construction site discharges in a manner Application of this waiver for regulatory not included this waiver in the final as prescriptive as is expected for purposes will be determined by the rule. discharges regulated under NPDES authorized NPDES authority. This Two commenters asked that EPA permits), the Agency intends that the waiver is discussed further in the allow States the flexibility to develop NPDES general permit will provide the following section titled Rainfall- their own waiver criteria but did not substantive standards applicable to the Erosivity Waiver. suggest how the Agency (or affected construction site discharge. EPA does The second waiver is based on a stakeholders) could evaluate the anticipate, however, that consideration of ambient water quality. acceptability of alternative State waiver implementation of MS4 programs to This waiver is available after a State or criteria. Therefore, the final rule does address construction site runoff within EPA develops and implements TMDLs not provide for any such alternative their jurisdiction will enhance overall for the pollutant(s) of concern from waivers. If a State does seek to develop NPDES compliance by construction site storm water discharges associated with alternate waiver criteria, then EPA dischargers. EPA also notes that under construction activity. This waiver is also procedures afford the opportunity for § 122.35(b), the permitting authority available for sites discharging to non- subsequent actions, for example, under may recognize its own program to impaired waters that do not require the Project XL Program in EPA’s Office control storm water discharges from TMDLs, when an equivalent analysis of Reinvention, which seeks cleaner, construction sites in lieu of requiring has determined allocations for small smarter, and cheaper solutions to such a program in an MS4’s NPDES construction sites for the pollutant(s) of environmental problems. Many permit, provided that the permitting concern or determined that such commenters suggested that EPA extend authority’s program satisfies the allocations are not needed to protect these waivers to existing industrial requirements of § 122.34(b)(4), water quality based on consideration of storm water regulations for construction including, for example, procedures for existing in-stream concentrations, activity greater than 5 acres. These site plan reviews and consideration of expected growth in pollutant construction site discharges are

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68775 regulated as industrial storm water for construction site dischargers and Predicting Soil Erosion by Water: A discharges under CWA 402(p)(2) and are permitting authorities because of the Guide to Conservation Planning With not eligible for such water quality-based difficulty in applying them to all small the Revised Universal Soil Loss waivers. sites. Equation (RUSLE) (USDA, 1997). Two commenters were concerned that One commenter mentioned that This waiver is time-sensitive and is waivers would create a potential for waivers for the R factor (rainfall- dependent on when during the year a significant degradation of small streams. erosivity) and soil loss are effluent construction activity takes place, how EPA disagrees. If small streams are standards that have not been developed long it lasts, and the expected rainfall threatened, the permitting authority in accordance with sections 301 and 304 and intensity during that time. R factors would choose not to provide any of the CWA. EPA disagrees that these vary based on location. EPA anticipates waivers. In addition, permitting sections are relevant to the designation that this waiver opportunity responds to authorities may protect small streams by of sources in today’s rule. The waiver concerns about the requirement for a designating discharges from small provisions in this section of the rule are permit when it is not expected to rain, construction activity based on the jurisdictional because they affect the especially in the arid areas of the U.S. potential for contribution to a violation scope of the universe of entities subject Under today’s rule, the permitting of a water quality standard or for to the NPDES program. Therefore, the authority could waive the requirements significant contribution of pollutants to waiver provisions are not themselves for a permit for time periods when the waters of the U.S. substantive control standards rainfall-erosivity factor (‘‘R’’ in RUSLE) Two commenters asked that the implemented through NPDES permits, is less than five during the period of waiver options be eliminated. They felt and thus, not subject to the statutory construction. For the purposes of it would create a gross inequity within criteria in sections 301 and 304. calculating this waiver, the period of the construction community if some Another commenter stated that construction activity starts at the time of projects will not be subject to the waivers would allow exemptions to the initial disturbance and ends with the requirements of today’s rule. While the technology based requirements and time of final stabilization. The operator comments may be valid, EPA disagrees would thus be inconsistent with the must submit a written certification to that waivers should be disallowed on two-fold approach of the CWA (a the Director in order to apply for such this basis. Construction site discharges technology based minimum and a water a waiver. EPA believes that those areas that qualify for a waiver from permitting quality based overlay). EPA receiving negligible rainfall during requirements are not expected to acknowledges that the CWA does not certain times of the year are unlikely to present a threat to water quality, which generally provide for waivers for the have storm events causing discharges is the basis for designation and Act’s technology-based requirements. that could adversely impact receiving regulation under today’s rule. The waiver provisions do not create streams. Consequently, BMPs would not A number of commenters suggested exemptions from technology-based be necessary on those smaller sites. This additional waivers in cases where new standards that apply to NPDES waiver is most applicable to projects of development will result in no additional dischargers; they provide exemption short duration and to the arid regions of adverse impacts to water quality as from the underlying requirement for an the country where the occurrence of compared to the existing development it NPDES permit in the first place. rainfall follows a cyclic pattern— replaces. EPA believes these waivers are Protection of water quality is the reason between no rain and extremely heavy either unworkable or unnecessary. It these smaller sites are designated for rain. EPA review of rainfall records for would be very difficult for most regulation under NPDES. The Act’s two these areas indicates that, during construction operators to determine, as fold approach imposes more stringent periods of the year when the number of well as for other stakeholders to verify, water quality based effluent limitations events and quantity of rain are low, on a site-by-site basis, that there is no when technology-based limitations storm water discharges from the smaller potential for adverse impact to water applicable to regulated dischargers are construction sites regulated under quality compared to the replaced insufficient to meet water quality today’s rule should be minimal. development. standards. Under today’s rule, water Some commenters supported the use Other commenters proposed waivers quality protection is the basis for of the R factor as a waiver, while others in cases where a local erosion and determining which of the unregulated felt that a waiver based on rainfall sediment control program covers the sources should be regulated at all. Thus, statistics ignores the fact that it may rain project or a separate waiver for small today’s rule is entirely consistent with on any given day and it is the linear utility projects. Instead of the Act’s two fold approach. cumulative effect of wet weather waivers, today’s rule addresses the first i. Rainfall-Erosivity Waiver. The discharges which cause water quality suggestion through the qualifying rainfall-erosivity waiver under impairments. A commenter also asked ˜ program provision described in the § 122.26(b)(15)(i)(A) is intended to what happens in ‘‘El Nino’’ years when section titled Cross-Referencing State/ exempt the requirements for a permit significantly more rainfall than normal Local Erosion and Sediment Control when and where negligible rainfall/ occurs. Another commenter also Programs below. Today’s rule provides runoff-erosivity is expected. In the expressed concern that this waiver was waivers for small linear projects in so development of the Universal Soil Loss not based on a measured water quality far as they satisfy conditions for low Equation, analysis of data indicated that impact, but instead on an indicator of rainfall erosivity. (See when factors other than rainfall are held potential impact. In response to the § 122.26(b)(15)(i)(A).) constant, soil loss is directly previous comments, EPA notes that, Other commenters suggested waivers proportional to a rainfall factor under CWA 402(p)(6), sources are based on distance to water body, composed of total storm kinetic energy designated on their potential for adverse existence of vegetated buffer around times the maximum 30 minute impact. Designation under the section is water body, slope of disturbed land, or intensity. The average annual sum of the prospective, not retrospective or if discharging to very large bodies of storm energy and intensity values for an remedial only. For that reason, the water. As a result of public outreach, area comprise the R factor—the rainfall waivers under today’s rule also operate EPA believes that these proposed erosivity index. A detailed explanation prospectively. EPA wanted to waive waivers would be generally unworkable of the R factor can be found in requirements for sites with little

VerDate 29-OCT-99 19:53 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68776 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations potential to impair water quality, and waters that do not require TMDLs, an solids. Although several TMDLs for the R factor is the most straightforward equivalent analysis that has either sediment and related parameters have way to do this. The permitting determined allocations for small been established, EPA does recognize authority, if electing to use waivers, construction sites for the pollutant(s) of that currently it is extremely difficult to could always suspend the use of concern or determined that such develop TMDLs for sediment. EPA is waivers in certain areas or during allocations are not needed to protect partially addressing this concern by certain times. In addition, the water quality based on consideration of clarifying in today’s rule that the permitting authority may choose to use existing in-stream concentrations, waivers may be based on a TMDL or a lower R factor threshold than the one expected growth in pollutant equivalent analyses for sediment or one set by EPA. Application of this waiver contributions from all sources, and a of the various pollutant parameters that is at the discretion of the permitting margin of safety. The pollutants of are a proxy for sediment. These include authority, subject only to the limitation concern that must be addressed include TSS, turbidity and siltation. that R factors cannot exceed 5. sediment or a parameter that addresses Other commenters noted that this One commenter expressed the need sediment (such as total suspended waiver was unattainable if a TMDL or for EPA to provide a justification for the solids (TSS), turbidity or siltation) and equivalent analysis must be available for threshold value used for the R factor. any other pollutant that has been every pollutant that could possibly be None of the commenters included any identified as a cause of impairment of present in any amount in discharges data to show that EPA’s proposed R any water body that will receive a from small construction sites regardless factor of 2 was either too high or too discharge from the construction activity. of whether the pollutant is causing low. EPA is using the R factor as an The operator must certify to the NPDES water quality impairment. Commenters indicator of the potential to impact permitting authority that the asked that EPA identify what constitutes water quality. In an effort to determine construction activity will take place, the ‘‘pollutants of concern’’ for which a which R threshold should be used, EPA and storm water discharges will occur, TMDL or its equivalent must be conducted additional analysis of the within the applicable drainage area developed. EPA has revised the rainfall/runoff erosivity factor for 134 evaluated in the TMDLs or equivalent proposed rule in response to these sites across the country. For an R factor analyses. concerns. threshold of 5, approximately 12% of Today’s rule modifies the approach in In order for discharges from sites would be waived if the project the proposed rule. EPA proposed to construction sites under five acres to period lasted 6 months, 27% for 3 allow a waiver of permit requirements qualify for the water quality waiver of months, 47% for 1 month, and 60% of for small construction if storm water today’s rule, the construction site sites would be waived if the project controls were determined to be operator must demonstrate that storm lasted for only 15 days. None of the 134 unnecessary based on ‘‘wasteload water controls are not necessary for sites would be waived if the project allocations that are part of ‘total sediment or a parameter that addresses lasted an entire year. For an R factor maximum daily loads’ (TMDLs) that sediment (such as TSS, turbidity or threshold of 2, approximately 9% of address the pollutants of concern,’’ or ‘‘a siltation) and any other pollutant that sites would be waived if the project comprehensive watershed plan, has been identified as a cause of period lasted 6 months, 15% for 3 implemented for the water body, that impairment of any water body that will months, 31% for 1 month, and 43% for includes the equivalents of TMDLs, and receive a discharge from the 15 days. For an R factor threshold of 10, addresses the pollutants of concern.’’ construction activity. Even if the water approximately 22% of sites would be Commenters asked for clarification of body is not currently impaired for waived if the project period lasted 6 the terms ‘‘comprehensive watershed sediment, today’s rule requires an months, 37% for 3 months, 60% for 1 plans’’ and ‘‘equivalent of TMDLs.’’ EPA analysis of the potential impacts of month, and 78% for 15 days. EPA intended that both terms would include sediment because the storm water believes that an R factor of 5 is an a comprehensive analysis that discharges from the construction adequate threshold to waive determines that controls on small activity will be a new source of loading requirements for sites because they construction sites are not needed based to the water body that could constitute would not reasonably be expected to on consideration of existing in-stream a new impairment. Because the water impair water quality. concentrations, expected growth in body will not necessarily have been EPA will develop, as part of the tool pollutant contributions from all sources, included on a ‘‘303(d) list’’ and a TMDL box described in section II.A.5, and a margin of safety. Today’s rule will not necessarily be required, the rule guidance materials and computer or makes this clarification. continues to allow an analysis that is web-accessible programs to assist One commenter pointed out that there the equivalent of a TMDL. The permitting authorities and construction are no water quality standards for designation of storm water discharges site discharges in determining if any suspended solids, the major pollutant from small construction activity for resulting storm water discharges from expected in discharges from regulation in today’s rule is intended to specific projects are eligible for this construction activity. The commenter control pollutants other than sediment. waiver. asserted that no waiver would ever be This waiver provision requires a TMDL ii. Water Quality Waiver. The water available. Another commenter noted or equivalent analysis for a pollutant quality waiver under that there are no sediment criteria other than gross particulates (i.e., § 122.26(b)(15)(i)(B) is available where developed for streams, also making this sediment and other particulate-focused storm water controls are not needed waiver useless. EPA notes that a number pollutant parameters) only if the based on a comprehensive, location- of States and Tribes have water quality receiving water is currently impaired for specific evaluation of water quality standards that address TSS, which are that pollutant. needs. The waiver is available based on narrative in form, and that may serve as One commenter expressed the either an EPA-approved ‘‘total a basis for water quality-based effluent concern that construction operators will maximum daily load’’ (TMDL) under limits. As efforts to identify not know if they are in a watershed section 303(d) of the CWA that impairments and improve water quality covered by a TMDL. To the extent this addresses the pollutant(s) of concern or, progress, some States may yet develop is an operator’s concern, he or she could for sites discharging to non-impaired water quality standards for suspended contact their NPDES permitting

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68777 authority before applying for permit § 122.28(b)(2)(v)). Under this approach, comprehensive of the various coverage to determine if receiving water the NPDES permitting authority will requirements for the whole project, it is subject to a TMDL. Alternatively, the have the discretion to decide whether or could avoid confusion due to differing permitting authority could identify the not to require NOIs for discharges from requirements for different sections of TMDL (or equivalent analysis) areas in construction activity less than 5 acres. the project. In addition, linear utility the general permit or another operator- Compared to the existing storm water projects, which usually have a shorter accessible information source. regulation, the permitting authority thus project period, are more likely to be Another commenter expressed the has increased flexibility in program eligible for the rainfall erosivity waiver. concern that a TMDL waiver is likely to implementation. EPA does recommend One commenter stated there was no be ineffective because the TMDL list is the use of NOIs, however because NOIs reason to delay the application period submitted only once every 2 years. By track permit coverage and provide a for regulated storm water discharges the time a water is listed, the activity useful information source to prioritize from small construction activities. The may have been completed and inspections or enforcement. Requiring commenter requested that the newly stabilized. The commenter argued that, an NOI allows for greater accountability regulated construction site discharges if a watershed is impaired due to by, and tracking of, dischargers. This should be required to seek permit sediment from construction, then storm simple permit application and reporting coverage within 90 days, as opposed to water controls will still be needed, mechanism also allows for better 3 years, of the effective date of the rule. because small construction can only be outreach to the regulated community, The Agency does not accept this waived when it is not identified as a uses an existing and familiar request. EPA anticipates that NPDES source of impairment. In response, EPA mechanism, and is consistent with the permitting authorities will need one to notes that an analysis that is the existing requirements for storm water two years to develop adequate legal equivalent of a TMDL (specifically, discharges from larger construction authority to implement a program to equivalent to the component of a TMDL activities. Today’s rule does not amend address this new category of discharges, that comprehensively analyses existing the requirement for NOIs in general as well as to develop and issue general ambient conditions against the permits for storm water discharges from permits. Moreover, to ensure effective applicable water quality standards) may construction activity disturbing 5 acres implementation to protect water quality, also provide a basis for waiver from the for more. See § 122.28(b)(2)(v). regulatory authorities will need default 1 acre designation. Also, even if EPA expects that the vast majority of additional time to inform small a water has been identified as impaired discharges of storm water associated construction site operators of for sediment, it is possible that a site or with small construction activity requirements and provide guidance and category of sites may receive an identified in § 122.26(b)(15) will be training on these requirements. allocation that is sufficiently high regulated through general permits. In Finally, EPA received a comment enough to allow discharges without the event that an NPDES permitting requesting that the three year file storm water controls. authority decides to issue an individual retention requirement be deleted for construction permit, however, discharges from small construction c. Permit Process and Administration individual application requirements for sites. While EPA recognizes that the The operator of the construction site, these construction site discharges are three year record retention schedule as with any operator of a point source found at § 122.26(c)(1)(ii). For any may be unnecessary for certain discharge, is responsible for obtaining discharges of storm water associated construction projects, the Agency has coverage under a NPDES permit as with small construction activity determined it is necessary to retain files required by § 122.21(b). The ‘‘operator’’ identified in § 122.26(b)(15) that are not after the completion of the project to of the construction site, as explained in authorized by a general permit, a permit ensure permit compliance, including the current NPDES construction general application made pursuant to applicable construction site stabilization permit, is typically the party or parties § 122.26(c) must be submitted to the enabling permit termination for such that either individually or collectively Director by 3 years and 90 days after sites. meet the following two criteria: (1) publication of the final rule. d. Cross-Referencing State, Tribal or Operational control over the site Some commenters expressed concern Local Erosion and Sediment Control specifications, including the ability to that linear construction projects (e.g., Programs make modifications in the roads, highways, pipelines) that cross specifications; and (2) day-to-day several jurisdictions will have to In developing the NPDES permit operational control of those activities at comply with multiple sets of requirements for construction sites less the site necessary to ensure compliance requirements from various jurisdictions, than 5 acres, members of the Storm with permit conditions (63 FR 7859). If including multiple local governments Water Phase II FACA Subcommittee more than one party meets these and States. EPA is limited in its options asked EPA to try to minimize criteria, then each party involved would to address these concerns because the redundancy in the construction permit typically be a co-permittee with any Agency cannot issue NPDES permits in requirements. In response, today’s rule other operators. The operator could be States authorized to implement the at § 122.44(s) provides for incorporation the owner, the developer, the general NPDES program nor preempt other more of qualifying State, Tribal or local contractor, or individual contractor. stringent local and State requirements. erosion and sediment control program When responsibility for operational EPA believes, however, that the option requirements by reference into the control is shared, all operators must for incorporating by reference the State, NPDES permit authorizing storm water apply. Tribal or local requirements (see discharges from construction sites In today’s rule, EPA is not requiring discussion in Section II.I.2.d., Cross- (described under §§ 122.26(b)(15) and an NOI for NPDES general permits for Referencing State/Local Erosion and (b)(14)(x)). The incorporation by storm water discharges from Sediment Control Programs) should reference approach applies not only to construction activities regulated by limit the administrative burden on the the newly regulated storm water § 122.26(b)(15) if the NPDES permitting operator responsible for discharges from discharges (from construction activity authority finds that the use of NOIs linear construction projects. If the disturbing between 1 and 5 acres, would be inappropriate (see operator were to implement the most including designated sites, but

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EPA expects discharges from construction activity noncompliance with the referenced that the new rule for construction and disturbing 5 or more acres, the local requirements will be considered post-construction BMPs being incorporation by reference approach noncompliance with the NPDES permit developed under CWA section 304(m) requires that the pollutant control which is federally enforceable. The will also encourage standardization of requirements from the incorporated NPDES permitting authority will, of local requirements. (See discussion of program also satisfy the statutory course, retain the discretion to decide this new rulemaking in section II.D.1, standard for limitations representing whether to include the alternative Federal Role of this preamble). application of the best available requirements in the general permit. EPA technology economically achievable believes that this approach will best Two commenters requested that an (BAT) and best conventional pollutant balance the need for consideration of ‘‘incorporation by reference’’ should control technology (BCT). specific local requirements and local include permission, in writing, from the For permits issued for discharges from implementation with the need for qualifying local program administrator small construction activity defined federal and citizen oversight, and will because of a perceived extra burden on under § 122.26(b)(15), a qualifying State, extend supplemental NPDES the referenced program. Any program Tribal, or local erosion and sediment requirements to control storm water requirements incorporated by reference control program is one that includes the discharges from construction sites. in NPDES permits should already apply program elements described under EPA developed the ‘‘incorporation by to construction site dischargers in the § 122.44(s)(1). These elements include reference’’ approach based on applicable area and therefore should not requirements for construction site implementation efforts designed by the add any additional burden to the operators to implement appropriate State of Michigan. Michigan relies on referenced program. EPA has left to the erosion and sediment control BMPs, localities to develop substantive discretion of the permitting authority requirements to control waste, a controls for storm water discharges the decision on whether to seek requirement to develop a storm water associated with construction activities permission from the qualifying program pollution prevention plan, and on a localized basis. Localities, before cross-referencing it in an NPDES requirements to submit a site plan for however, are not required to do so. In permit. review. A storm water pollution areas where the local authority does not One commenter stated that a prevention plan includes site choose to participate, the State qualifying local program should require descriptions, descriptions of appropriate administers the sedimentation and a SWPPP. The proposed rule defined control measures, copies of approved erosion control requirements. The State the qualifying local program as a State, Tribal or local requirements, agency, as the NPDES permitting program the meets the minimum maintenance procedures, inspection authority, receives an NOI (termed program requirements established in the procedures, and identification of non- ‘‘notice of coverage’’ by Michigan) proposed construction minimum storm water discharges. The under the general permit and tracks and control measure for small MS4s. To construction site’s permit would require exercises oversight, as appropriate, over ensure consistency in the controls for it to follow the requirements of the the activity causing the storm water storm water discharges between the qualifying local program rather than discharge. Michigan’s goal under these larger, already regulated construction require it to follow two different sets of procedures is to utilize the existing sites and the discharges from smaller requirements. If a partially-qualifying erosion and sediment control program sites that will be regulated as a result of program does not have all of the infrastructure authorized under State today’s rule, EPA has made a change to elements described under § 122.44(s)(1), law for storm water discharge define a qualifying local program as one then the NPDES permitting authority regulation. (See U.S. Environmental that includes the elements described in may still incorporate language in the Protection Agency, Office of Water. § 122.44(s)(1). Section 122.44(s)(1) small construction site discharge’s January 7, 1994. Memo: From Michael requires the development and permit that requires the construction B. Cook, Director OWEC, to Water implementation of a storm water site operator to follow the program, but Management Division Directors, pollution prevention plan as a criterion the construction site discharge permit Regarding the ‘‘Approach Taken by for qualification of local programs for also must incorporate the missing Michigan to Regulate Storm Water incorporation by reference. As noted required elements in order to satisfy Discharges from Construction above, if a qualifying program does not CWA requirements. Activities.’’) The term ‘‘local’’ refers to the Most commenters supported the include all the elements in § 122.44(s)(1) geographic area of applicability, not the general concept of incorporating by then the permitting authority will need form of government that develops and reference qualifying programs. Two to specify the missing elements in order administers the program. Thus, a commenters expressed concern that to rely on the incorporation by reference qualifying federal erosion and control different local construction approach. program, such as certain programs requirements will create an impossible One commenter asked what happens developed and administered by the regulatory scheme for builders who in regard to the use of qualifying federal Bureau of Land Management, work in different localities. EPA programs when a construction site could be a qualifying local program. believes that allowing States to operator is also the qualifying local As a result of this provision, local incorporate qualifying programs by program operator. The provision for requirements will, in effect, provide the reference will minimize the differences incorporation by reference applies in substantive construction site erosion for builders who work in different areas this situation also. The local program and sediment control requirements for of the State. These differences already operator will be required to comply the NPDES permit authorization. exist, however, not only for erosion and with requirements it has established for Therefore, by following one set of sediment controls, but also other aspects others.

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EPA chose to address storm impacts from construction sites and distribution of these facilities follows water discharges from construction sites provides benefits such as accountability the distribution of population, with a located both within and outside and federal enforcement. large percentage of facilities A number of commenters supported urbanized areas because of the potential concentrated within urbanized areas issuing one permit for each construction for adverse water quality impact from (see page 4-35 of the Report). This company, instead of a permit for each examination resulted in identification of storm water discharges from smaller individual construction activity (also two general classes of facilities with the sites in all areas. Regulating only those requested for storm water discharges potential for discharging pollutants to sites within urbanized areas would have from the larger, already regulated waters of the United States through excluded a large number of potential construction sites). Other commenters storm water point sources. contributors to water quality found that a ‘licensing’ program for The first group (Group A) included impairment and would not address large construction site operators would have sources that are very similar, or areas of new development occurring on many problems, including identifying identical, to regulated ‘‘storm water the outer fringes of urbanized areas. In who to permit and tracking information discharges associated with industrial fact, designating only small construction on active sites. EPA is regulating only activity’’ but that were not included in discharges within urbanized areas might the storm water discharges associated the existing storm water regulations create a perverse incentive for building with construction activity from small because EPA used SIC codes in defining only outside urbanized areas. Such an sites, not the construction activity itself. the universe of regulated industrial incentive would be inconsistent with Separate NPDES permits (either activities. By relying on SIC codes, a the Agency’s intention behind individual or general permit coverage) classification system created to identify designating to protect water quality. The for construction site discharges avoid industries rather than environmental Agency intends that designation to potential problems in tracking sites and impacts from these industries protect water quality in today’s rule operator accountability. Section discharges, some types of storm water should be both remedial and preventive. 122.28(b)(2)(v) gives permitting discharges that might otherwise be A number of commenters encouraged authorities the option to issue a general considered ‘‘industrial’’ were not EPA to cover municipal construction permit without requiring an NOI. If an included in the existing NPDES storm activities under the small MS4 general NOI is not required for each activity, water program. The second general class permit, instead of issuing a separate permitting authorities could pursue of facilities (Group B) was identified on NPDES construction permit to these other options such as a company-wide the basis of potential for activities and municipal construction projects. NOI, license instead of an NOI, or pollutants that could contribute to storm Similarly, a number of commenters another mechanism. water contamination. supported EPA giving industrial EPA estimates that Group A has facilities the option of having storm 2. Other Sources approximately 100,000 facilities. water from construction activities on the In the Storm Water Discharges Discharges from facilities in this group, site covered by the industrial storm Potentially Addressed by Phase II of the which may be of high priority due to water permit. Several other commenters National Pollutant Discharge their similarity to regulated storm water found that combining multiple permit Elimination System Storm Water discharges from industrial facilities, types under one general permit Program, Report to Congress, March include, for example, auxiliary facilities introduced a degree of complexity 1995, (‘‘Report’’) submitted by EPA or secondary activities (e.g., which was confusing to permittees. pursuant to CWA section 402(p)(5), EPA maintenance of construction equipment Permitting authorities have the option of examined the remaining unregulated and vehicles, local trucking for an combining MS4 and construction point sources of storm water for the unregulated facility such as a grocery permits or industrial and construction potential to adversely affect water store) and facilities intentionally permits, however, specific requirements quality. Due to very limited national omitted from existing storm water for each would still need to be included data on which to estimate pollutant regulations (e.g., publicly owned in the permit issued. EPA agrees that loadings on the basis of discharge treatment works with a design flow of this would probably result in a more categories, the discussion of the extent less than 1 million gallons per day, complex and confusing permit of unregulated storm water discharges is landfills that have not received compared to the existing component limited to an analysis of the number and industrial waste). permits. geographic distribution of the Group B consists of nearly one Several commenters supported an unregulated storm water discharges. million facilities. EPA organized Group alternative for regulated small MS4s Therefore, EPA is not designating any B sources into 18 sectors for the where a local qualified program alone, additional unregulated point sources of purposes of the Report. The automobile without an NPDES permit, is sufficient storm water on a nationwide, categorical service sector (e.g., gas/service stations, to enforce compliance with construction basis. Instead, the remainder of the general automobile repair, new and site discharge requirements. On the sources will be regulated based on case- used car dealerships, car and truck other hand, one commenter stated that by-case post-promulgation designations rental) makes up more than one-third of linking the local construction erosion by the NPDES permitting authority. the total number of facilities identified and sediment control program to the EPA did, however, evaluate a variety in all 18 sectors. existing NPDES program for storm water of categories of discharges for potential EPA conducted a geographical from larger construction has driven designation in the Report. EPA’s efforts analysis of the industrial and improvements in many local programs. to identify sources and categories of commercial facilities in Groups A and

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B. The geographical analysis shows that that pollutant sources are regulated in a exempted storm water discharges the majority are located in urbanized comprehensive fashion under other associated with industrial activity that areas (see Section 4.2.2, Geographic environmental protection programs, are owned or operated by municipalities Extent of Facilities, in the Report). In such as programs under the Resource serving populations less than 100,000 general, about 61 percent of Group A Conservation and Recovery Act (RCRA) people (except for airports, power facilities and 56 percent of Group B or the Occupational Health and Safety plants, and uncontrolled sanitary facilities are located in urbanized areas. Act (OSHA). If EPA concluded that the landfills) from the need to apply for or The analysis also showed that nearly category of sources was sufficiently obtain a storm water discharge permit twice as many industrial facilities are addressed under another program, the (section 1068(c) of ISTEA). Congress found in all urbanized areas as are Agency rated that source category as extended the NPDES permitting found in large and medium having ‘‘low’’ potential for adverse moratorium for these facilities to allow municipalities alone. Notable water quality impact. Application of the small municipalities additional time to exceptions to this generalization second criterion showed that some comply with NPDES requirements for included lawn/garden establishments, categories were likely to be adequately certain sources of industrial storm small unregulated animal feedlots, addressed by other programs. water. The August 7, 1995 storm water wholesale livestock, farm and garden After application of the third final rule (60 FR 40230) further machinery repair, bulk petroleum criterion, availability of nationwide data extended this moratorium until August wholesale, farm supplies, lumber and on the various storm water discharge 7, 2001. However, today’s rule changes building materials, agricultural categories, EPA concluded that available this deadline so that previously chemical dealers, and petroleum data would not support any such exempted industrial facilities owned or pipelines, which can frequently be nationwide designations. While such operated by municipalities serving located in smaller municipalities or data could exist on a regional or local populations less than 100,000 people, rural areas. basis, EPA believes that permitting must now submit an application for a In identifying potential categories of authorities should have flexibility to permit within 3 years and 90 days from sources for designation in today’s regulate only those categories of sources date of publication of today’s rule. notice, EPA considered designation of contributing to localized water quality EPA received comments discharges from Group A and Group B impairments. recommending that permit requirements facilities. EPA applied three criteria to EPA received comments requesting for municipally owned or operated each potential category in both groups designation of additional industrial, to determine the need for designation: commercial and retail sources (e.g. industrial storm water discharges, (1) The likelihood for exposure of industrial activity ‘‘look-alikes’’, roads, including those previously exempt pollutant sources included in that commercial facilities and institutions, under ISTEA, be included in a single category, (2) whether such sources were and vehicle maintenance facilities) in NPDES permit for all MS4 storm water adequately addressed by other the final rule, because the commenters discharges. The existing NPDES environmental programs, and (3) believe that the data exist to support regulations already provide permitting whether sufficient data were available at national designation of some of these authorities the ability to issue a single this time on which to make a sources. Other comments were received ‘‘combination’’ permit for MS4 determination of potential adverse water opposing designation of any additional discharges. However, if the permitting quality impacts for the category of sources. Today’s rule does not designate authorities chose to issue this type of sources. As discussed previously, EPA any additional industrial or commercial permit, they must make sure that in searched for applicable nationwide data category of sources either because EPA doing so, they are not creating a double on the water quality impacts of such currently lacks information indicating a standard for industrial facilities covered categories of facilities. consistent potential for adverse water under the combination permit versus By application of the first criterion, quality impact or because of EPA’s those covered under separate general or the likelihood for exposure, EPA belief that the likelihood of adverse individual permits. In order to avoid considered the nature of potential impacts on water quality is low, with this double standard, combination pollutant sources in exposed portions of some possible exceptions on a more permits would have to contain such sites. As precipitation contacts local basis. Since the time the Agency requirements that are the same or very industrial materials or activities, the submitted the Report, EPA has similar to the requirements found in resultant runoff is likely to mobilize and continued to seek additional data and separate MS4 and industrial permits, become contaminated by pollutants. As has requested available data from the i.e., the minimum measures and other the size of these exposed areas FACA members. If sufficient regional or necessary requirements of an MS4 increases, EPA expects a proportional nationwide data become available in the permit, and the SWPPP, monitoring and increase in the pollutant loadings future, the permitting authority could at reporting requirements, and other leaving the site. If EPA concluded that that time designate a category of sources necessary requirements of an industrial a category of sources has a high or individual sources on a case-by-case permit. If such a combined MS4 general potential for exposure of raw materials, basis. Therefore, today’s rule encourages permit were issued, the regulations intermediate products, final products, control of storm water discharges from require that each discharger submit waste materials, byproducts, industrial Groups A and B through self-initiated, NOIs for their respective discharges, machinery, or industrial activity to voluntary BMPs, unless the discharge except for discharges from small rainfall, the Agency rated that category (or category of discharges) is designated construction activities. Flexibility exists of sources as having ‘‘high’’ potential for for permitting by the permitting in developing a combination NOI which adverse water quality impact. EPA’s authority. See discussion in section I.D., could reduce the need to submit application of the first criterion showed EPA’s Reports to Congress. duplicative information, e.g. owner/ that a number of Group A and B sources operator name and address. The have a high likelihood of exposure of 3. ISTEA Sources combination NOI would still need to pollutants. Provisions within the Intermodal require specific information for each Through application of the second Surface Transportation and Efficiency separate municipally owned or operated criterion, EPA assessed the likelihood Act (ISTEA) of 1991 temporarily industrial location, including

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This facility name, facility address, type of subsequently address a source (or conclusion is consistent with the facility or discharge and receiving category of sources) of storm water Congress’ recognition of the potential stream for each industrial discharge discharges of concern on a localized or need for such designation under the first location. When viewed in its entirety, a regional basis. For example, as States phase of storm water regulation as combination permit, which by necessity and EPA implement TMDLs, permitting described in CWA section 402(p)(2)(E). would need to contain all elements of authorities may need to designate some Under CWA section 402(p)(2)(E), otherwise separate industrial and MS4 point source discharges of storm water Congress recognized the need for both permit requirements, and require NOI on a categorical basis either locally or EPA and the State to retain authority to information for each separate industrial regionally in order to assure progress regulate unregulated point sources of activity, may have few advantages when toward compliance with water quality storm water under the NPDES permit compared to obtaining separate MS4 standards in the watershed. program. Second, to the extent that and industrial general permit coverage. EPA received comments asking that CWA section 402(p)(6) requires In order to allow the permitting § 122.26(a)(9)(i)(D) as proposed be designation of a ‘‘category’’ of sources, authority to issue a single storm water modified to include specific language the permitting authority may designate permit for the MS4 and all municipally clarifying the permitting authority’s such (as yet unidentified) sources as a owned or operated industrial facilities, ability to designate additional sources category that should be regulated to including those previously exempt on a categorical basis as explained in protect water quality. Though such under ISTEA, today’s rule requires the preamble to the proposed rule. One sources may exist and discharge today, applications for ISTEA sources within 3 comment requested that the designation if neither EPA nor the State/Tribal yrs and 90 days from date of publication language include ‘‘categories of sources NPDES permitting authority has of today’s rule. The permitting authority on a Statewide basis.’’ EPA agrees that designated the source for regulation has the ultimate decision to determine the intent of the language may not have under CWA section 402(p)(2)(E) to date, whether or not a single all- been clear regarding categorical then CWA section 402(p)(6) provides encompassing MS4 permit is designation. Today’s rule modifies the authority to designate such sources. appropriate. subsection (D) to clarify that the The Agency can designate a category designation authority can be applied of ‘‘not yet identified’’ sources to be 4. Residual Designation Authority within different geographic areas to any regulated, based on local concerns, even The NPDES permitting authority’s single discharge (i.e., a specific facility), if data do not exist to support existing designation authority, as well or category of discharges that are nationwide regulation of such sources. as the petition provisions are being contributing to a violation of a water EPA does not interpret the language in retained. Today’s rule contains two quality standard or are significant CWA section 402(p) to preclude States provisions related to designation contributors of pollutants to waters of from exercising designation authority authority at §§ 122.26(a)(9)(i)(C) and (D). the United States. The added term under these provisions because such Subsection (C) adds designation ‘‘within a geographic area’’ allows designation (and subsequent regulation authority where storm water controls ‘‘State-wide’’ or ‘‘watershed-wide’’ of designated sources) is within the are needed for the discharge based upon designation within the meaning of the ‘‘scope’’ of the NPDES program. wasteload allocations that are part of terms. EPA also believes that sources TMDLs that address the pollutant(s) of One commenter questioned the regulated pursuant to a State concern. EPA intends that the NPDES Agency’s legal authority to provide for designation are part of (and regulated permitting authority have discretion in such residual designation authority. The under) a federally approved State the matter of designations based on stakeholder argued that the lapse of the NPDES program, and thus subject to TMDLs under subsection (C). October 1, 1994, permitting moratorium enforcement under CWA sections 309 Subsection (D) carries forward residual under CWA section 402(p)(1) eliminated and 505. Under existing NPDES State designation authority under former the significance of the CWA section program regulations, State programs that § 122.26(g), and has been modified to 402(p)(2) exceptions to the moratorium, are ‘‘greater in scope of coverage’’ are provide clarification on categorical including the exception for discharges not part of the federally-approved designation. Under today’s rule, EPA of storm water determined to be program. By contrast, any such State and authorized States continue to contributing to a violation of a water regulation of sources in this ‘‘reserved exercise the authority to designate quality standard or a significant category’’ will be within the scope of the remaining unregulated discharges contributor of pollutants under CWA federal program because today’s rule composed entirely of storm water for section 402(p)(2)(E). The stakeholder recognizes the need for such post regulation on a case-by-case basis further argued that EPA’s authority to promulgation designations of (including § 123.35). Individual sources designate sources for regulation under unregulated point sources of storm are subject to regulation if EPA or the CWA section 402(p)(6) is limited to water. Such regulation will be ‘‘more State, as the case may be, determines storm water discharges other than those stringent’’ than the federal program that the storm water discharge from the described under CWA section 402(p)(2). rather than ‘‘greater in scope of source contributes to a violation of a Because CWA section 402(p)(2)(E) coverage’’ (40 CFR 123.1(h)). water quality standard or is a significant describes individually designated EPA does not interpret the contributor of pollutants to waters of the discharges, the stakeholder concluded congressional direction in CWA section United States. This standard is based on that regulations under CWA section 402(p)(6) to preclude regulation of point the text of section CWA 402(p). In 402(p)(6) cannot provide for post- sources of storm water that should be today’s rule, EPA believes, as Congress promulgation designation of individual regulated to protect water quality. did in drafting section CWA sources. EPA disagrees. Under CWA section 510, Congress 402(p)(2)(E), that individual instances of First, as explained previously, EPA expressly recognized and preserved the storm water discharge might warrant anticipates that NPDES permitting authority of States to adopt and enforce

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See site, yet they are still required to apply regulation of certain pollutant sources NRDC v. EPA, 966 F.2d 1292, 1305 (9th for an NPDES storm water permit and through the point source control Cir. 1992). Today’s final rule responds meet all permitting requirements. program, the NPDES permitting to that remand. In the 1990 storm water Examples of such facilities are a soap program. Section 502(14) excludes regulations, EPA excluded the light manufacturing plant (SIC Code 28) or agricultural storm water and return industry category from the requirement hazardous waste treatment and disposal flows from irrigated agriculture from the for an NPDES permit if the industrial facility, where all industrial activities, definition of point source, and section materials and/or activities were not even loading docks, are inside a 402(l) limits applicability of the section ‘‘exposed’’ to storm water (see building or under a roof. 402 permit program for return flows § 122.26(b)(14)). The Agency had Although they did not provide a from irrigated agriculture, as well as for reasoned that most of the activity at written report, the FACA Committee storm water runoff from certain oil, gas, these types of facilities takes place members advised EPA that the existing and mining operations. Unlike sections indoors and that emissions from stacks, storm water program should be revised 502(14) and 402(l), EPA does not use of unhoused manufacturing to allow such facilities to seek an interpret CWA section 402(p)(6) as an equipment, outside material storage or exclusion from the NPDES storm water express provision limiting the authority disposal, and generation of large permitting requirements. The to designate point sources of storm amounts of dust or particles would be Committee agreed that such an water for regulation on a case-by-case atypical (55 FR 48008, November 16, exclusion should also provide a strong basis after the promulgation of final 1990). incentive for other industrial facilities regulations. Any source of storm water The Ninth Circuit determined that the that conduct industrial activities discharge is encouraged to assess its exemption was arbitrary and capricious outdoors to move the activities under potential for storm water contamination for two reasons. First, the court found cover or into buildings to prevent and take preventive measures against that EPA had not established a record to contamination of rainfall and storm contamination. Such proactive actions support its assumption that light water runoff. The committee believed could result in the avoidance of future industry that was not exposed to storm that such a ‘‘no exposure’’ permit regulation. water was not ‘‘associated with exclusion could be a valuable incentive One comment was received industrial activity,’’ particularly when for storm water pollution prevention. requesting clarification of the term other types of industrial activity not In today’s final rule, the Agency ‘‘non-municipal’’ in § 122.26(a)(9)(ii). exposed to storm water remained responds to both of the bases for the The commenter is concerned that the ‘‘associated with industrial activity.’’ court’s remand. The exclusion from term ‘‘non-municipal,’’ in this context, The court specifically found that ‘‘[t]o permitting based on ‘‘no exposure’’ implies that municipally owned or exempt these industries from the normal applies to all industrial categories listed in the existing storm water regulations operated facilities cannot be designated. permitting process based on an except construction. The court’s opinion The term ‘‘non-municipal’’ in this unsubstantiated assumption about this rejected EPA’s distinction between light context refers to the universe of group of facilities is arbitrary and industry and other industry, but it did unregulated industrial and commercial capricious.’’ Second, the court not preclude an interpretation that treats facilities that could potentially be concluded that the exemption all ‘‘non-exposed’’ industrial facilities in designated according to § 122.26(a)(9)(i) impermissibly ‘‘altered the statutory the same fashion. Presuming that an authority. There is no exemption for scheme’’ for permitting because the exemption relied on the unverified industrial facility adequately prevents municipally owned or operated judgment of the light industrial facility exposure of industrial materials and facilities under these designation operator to determine non-applicability activities to storm water, today’s rule provisions. treats discharges from ‘‘non-exposed’’ Finally, EPA received comments and of the permit application requirements. industrial facilities in a manner similar evaluated the proposal under which In other words, the court was critical to the way Congress intended for operators of regulated small, medium, that the operator would determine for discharges from administrative and large MS4s would be responsible itself that there was ‘‘no exposure’’ and then simply not apply for a permit buildings and parking lots. Specifically, for controlling discharges from without any further action. Without a permits will not be required for storm industrial and other facilities into their basis for ensuring the effective operation water discharges from these facilities on systems in lieu of requiring NPDES of the permitting scheme—either that a categorical basis. permit coverage for such facilities. EPA facilities would self-report actual To assure that discharges from did not adopt this framework due to exposure or that EPA would be required industrial facilities really are similar to concerns with administrative and to inspect and monitor such facilities— discharges from administrative technical burden on the MS4 operators, the court vacated and remanded the rule buildings and parking lots, and to as well as concerns about such an to EPA for further rulemaking. respond to the second basis for the intergovernmental mandate. One of the major concerns expressed court’s remand, the permitting J. Conditional Exclusion for ‘‘No by the FACA Committee, was that EPA exclusion is ‘‘conditional’’. The person Exposure’’ of Industrial Activities and streamline and reinvent certain responsible for a point source discharge Materials to Storm Water troublesome or problematic aspects of from a ‘‘no exposure’’ industrial source the existing permitting program for must meet the conditions of the 1. Background storm water discharges. One area exclusion, and complete, sign and In 1992, the Ninth Circuit court identified was the mandatory submit the certification to the remanded to EPA for further applicability of the permitting program permitting authority for tracking and

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This the discharger to indicate if they have EPA relied upon the ‘‘no exposure’’ approach is consistent with the existing paved or roofed over a formerly concept discussed by the FACA storm water rules which were based on exposed, pervious area in order to Committee in developing the ‘‘no Congress’s intent to exclude non- qualify for the ‘‘no exposure’’ exclusion. exposure’’ provisions of today’s rule. industrial areas such as ‘‘parking lots If the answer is yes, the discharger must EPA is deleting the sentence regarding and administrative and employee indicate, by choosing from three ‘‘no exposure’’ for the facilities in buildings.’’ 133 Cong. Rec. 985 (1987). possible responses, approximately how § 122.26(b)(14)(xi) and adding a new EPA also lacks data indicating that much impervious area was created to § 122.26(g) titled ‘‘Conditional discharges from these areas at an achieve ‘‘no exposure’’. The choices are: Exclusion for No Exposure of Industrial industrial facility cause significant (1) less than 1 acre, (2) 1 to 5 acres, and Activities to Storm Water.’’ The ‘‘no receiving water impairments. Therefore, (3) more than 5 acres. This requirement exposure’’ provision will make storm the non-industrial areas at a facility do provides additional information that water discharges from all classes of not need to be assessed as part of the will aid in determining if discharges industrial facilities eligible for ‘‘no exposure’’ certification. from the facility are causing adverse exclusion, except storm water EPA received comments related to receiving water impacts. EPA intends to discharges from regulated construction industrial facilities that achieve ‘‘no prevent water quality impacts resulting activities. Regulated construction exposure’’ by constructing large from increased discharges of pollutants, activities cannot claim ‘‘no exposure’’ amounts of impervious surfaces, such as which may result from increased because the main pollutants of concern roofs, where previously there were volume of runoff. In many cases, (e.g., sediment) generally cannot pervious or porous surfaces into which consideration of the increased flow rate, entirely be sheltered from storm water. storm water could infiltrate. Some velocity and energy of storm water Today’s rule represents a significant commenters made the point that large discharges, following construction of expansion in the scope of the ‘‘no amounts of impervious area may cause large amounts of impervious surfaces, exposure’’ provision originally a significant increase in storm water must be taken into consideration in promulgated in the 1990 rule, which volume flowing off the industrial order to reduce the discharge of was only for storm water discharges facility, and thus may cause adverse pollutants, to meet water quality from light industry. The intent of receiving water impacts simply due to standards and to prevent degradation of today’s ‘‘no exposure’’ provision is to the increased quantity of storm water receiving streams. EPA recommends provide a simplified method for flow. Some commenters said that storm that dischargers consider these factors complying with the CWA to all water discharges from impervious areas when making modifications to their site industrial facilities that are entirely at an industrial facility are generally in order to qualify for the ‘‘no exposure’’ indoors. This includes facilities that are more frequent, and often larger, than exclusion. located within a large office building, or discharges from the pre-existing natural at which the only items permanently surfaces. They believe that these 2. Today’s Rule exposed to precipitation are roofs, discharges will contain pollutants In order to claim relief under the ‘‘no parking lots, vegetated areas, and other typical of commercial areas and roads exposure’’ provision, the discharger of non-industrial areas or activities. and are an equal threat to direct human an otherwise regulated facility must EPA received several comments uses of the water and can cause equal submit a no exposure certification that related to storm water runoff from damage to aquatic life and its habitat. incorporates the questions of parking lots, roof tops, lawns, and other Other commenters believe that if § 122.26(g)(4)(iii) to the NPDES non-industrial areas of an industrial Congress or EPA addresses the issue of permitting authority once every 5 years. facility. Storm water discharges from flow, it should be addressed on a This provision applies across all these areas, which may contain broader scale than merely through the categories of industrial activity covered pollutants or which may result in ‘‘no exposure’’ exclusion, and that EPA by the existing program, except additional storm water flows, are not has no authority under any existing discharges from construction activities. directly regulated under the existing legal framework to regulate flow In addition to submitting a ‘‘no storm water permitting program because directly. Some commenters stated that exposure’’ certification every 5 years, they are not ‘‘storm water discharges developing federal parameters for the the facility must allow the NPDES associated with industrial activity’’. control of water quantity, i.e. flow, permitting authority or operator of an Many comments on this issue supported would result in federal intrusion into MS4 (where there is a storm water maintaining the exclusion from the land use planning, an authority that discharge to the MS4) to inspect the existing regulations for storm water they claim is solely within the purview facility and to make such inspection permitting for discharges from of State governments and their political reports publicly available upon request. administrative buildings, parking lots, subdivisions. Also, upon request, the facility must and other non-industrial areas. Other EPA is not attempting to regulate flow submit a copy of the ‘‘no exposure’’ comments opposed allowing the via the ‘‘no exposure’’ provisions. EPA certification to the operator of the MS4 continued exclusion for discharges from does agree, however, that increases in into which the facility discharges (if non-industrial areas of the site because impervious surfaces can result in applicable). All ‘‘no exposure’’ discharges from these areas are increased runoff volumes from the site certifications must be signed in potentially a significant cause of which in turn may increase pollutant accordance with the signatory receiving water impairment. These loading. In addition, the Agency notes requirements of § 122.22. The ‘‘no comments urged that such discharges that in some States water quality exposure’’ certification is non- should not be excluded from NPDES standards include water quality criteria transferable. In the event that the facility permit coverage. Today’s rule does not for flow or turbidity. Therefore, in order operator changes, the new discharger require permit coverage for discharges to provide a minimal amount of must submit a new ‘‘no exposure’’ from a facility’s exposed areas that are information on possible impacts from certification.

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Members of the FACA Committee individual or general permit to ensure request a copy of the certification, and urged that EPA not allow dischargers that appropriate actions are taken to can inspect the facility. The public can certifying ‘‘no exposure’’ to take actions address adverse water quality impacts. request a copy of the certification and/ to qualify for this provision that result While the intent of today’s ‘‘no or inspection reports. In adopting these in a net environmental detriment. In exposure’’ provision is to reduce the conditional ‘‘no exposure’’ provisions, developing a regulatory implementation regulatory burdens on industrial the Agency addressed the Ninth Circuit mechanism, however, EPA found that facilities and government agencies, the court’s ruling regarding the discharger’s the phrase ‘‘no net environmental FACA Committee suggested that the unverified judgment. detriment,’’ was too imprecise to use NPDES permitting authority consider a EPA received one comment within this context. Therefore, today’s compliance assessment program to requesting clarification on whether the rule addresses this issue by requiring ensure that facilities that have availed anti-backsliding provisions in the information that should help the themselves of this ‘‘no exposure’’ option regulations at § 122.44(l) apply to permitting authority to determine meet the applicable requirements. industrial facilities that are currently whether actions taken to qualify for the Inspections could be conducted at the covered under an NPDES storm water exclusion interfere with the attainment discretion of the NPDES authority and permit, and whether such facilities or maintenance of water quality be coordinated with other facility could qualify for the ‘‘no exposure’’ standards, including designated uses. inspections. EPA expects, however, that exclusion under today’s rule. The anti- Permitting authorities will be able, the permitting authority will conduct backsliding provisions will not prevent where necessary, to make a inspections when it becomes aware of most industrial facilities that can certify potential water quality impacts possibly determination by evaluating the ‘‘no exposure’’ under today’s rule from caused by the facility’s storm water activities that changed at the industrial qualifying for an exclusion from discharges or when requested to do so site to achieve ‘‘no exposure’’, and permitting. The anti-backsliding by adversely affected members of the assess whether these changes cause an provisions contain 5 exceptions that public. The intent of this provision is adverse impact on, or have the allow permits to be renewed, reissued or that the 5 year ‘‘no exposure’’ reasonable potential to cause an modified with less stringent conditions. certification be fully available to, and instream excursion of, water quality One exception at § 122.44(l)(2)(A) enforceable by, appropriate federal and standards, including designated uses. allows less stringent conditions if State authorities under the CWA. EPA anticipates that many efforts to ‘‘material and substantial alterations or Private citizens can enforce against achieve ‘‘no exposure’’ will employ additions to the permitted facility simple good housekeeping and facilities for discharges of storm water that are inconsistent with a ‘‘no occurred after permit issuance which contaminant cleanup activities. Other justify the application of a less stringent efforts may involve moving materials exposure’’ certification if storm water discharges from such facilities are not effluent limitation.’’ Section and industrial activities indoors into 122.44(l)(B)(1) also allows less stringent existing buildings or structures. otherwise permitted and in compliance with applicable requirements. requirements if ‘‘information is In very limited cases, industrial EPA received comments from owners, available which was not available at the operators may make major changes at a operators and representatives of Phase I time of permit issuance and which site to achieve ‘‘no exposure’’. These facilities classified as ‘‘light industry’’ as would have justified the application of efforts may include constructing a new defined by the regulations at less stringent effluent limitations at the building or cover to eliminate exposure § 122.26(b)(14)(xi). The comments time of permit issuance.’’ Facility’s or constructing structures to prevent recommended maintaining the approach operators who certify ‘‘no exposure’’ run-on and storm water contact with of the existing regulations which does and submit the required information industrial materials or activities. Where not require the discharger to submit any once every 5 years will have provided major changes to achieve ‘‘no exposure’’ supporting documentation to the the permitting authority ‘‘information increase the impervious area of the site, permitting authority in order to claim that was not available at the time of the facility operator must provide this the ‘‘no exposure’’ exclusion from permit issuance.’’ Also, some facilities information on the ‘‘no exposure’’ permitting. As discussed previously, the may, in order to achieve ‘‘no exposure’’, certification form as discussed above. ‘‘no exposure’’ concept was developed make ‘‘material and substantial Using this and other available data and in response to the Ninth Circuit court’s alterations or additions to the permitted information, permitting authorities remand of part of the existing rules back facility.’’ Therefore, most facilities should be able to assess whether any to EPA. The court found that EPA covered under existing NPDES general major change has resulted in increased cannot rely on the ‘‘unverified permits for storm water (e.g., EPA’s pollutant concentrations or loadings, judgment’’ of the facility. The comments Multi-Sector General Permit) will be toxicity of the storm water runoff, or a opposing documentation did not eligible for the conditional ‘‘no change in natural hydrological patterns address the ‘‘unverified judgment’’ exposure’’ exclusion from permitting that would interfere with the attainment concern. without concern about the anti- and maintenance of water quality Today’s rule is a ‘‘conditional’’ backsliding provisions. Such standards, including designated uses or exclusion from permitting which dischargers will have met one or both of appropriate narrative, chemical, requires all categories, including the the anti-backsliding exceptions detailed biological, or habitat criteria where such ‘‘light industrial’’ facilities that have no above. Facilities that are covered under State or Tribal water quality standards exposure of materials to storm water, to individual permits containing numeric exist. In these instances, the facility submit a certification to the permitting limitations for storm water should operator and their NPDES permitting authority. Upon receipt of a complete consult with their permitting authority authority should take appropriate certification, the permitting authority to determine whether the anti- actions to ensure that attainment or can review the information, or call, or backsliding provisions will prevent maintenance of water quality standards inspect the facility if there are doubts them from qualifying for the exclusion can be achieved. The NPDES permitting about the facility’s ‘‘no exposure’’ claim. from permitting (for that discharge authority should decide if the facility Also, if the facility discharges into an point) based on a certification of ‘‘no must obtain coverage under an MS4, the operator of the MS4 can exposure’’.

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EPA received several comments discharger ‘‘must comply immediately definition are discussed in more detail regarding the timing of when the ‘‘no with all the requirements of the storm below. exposure’’ certification should be water program including applying for EPA intends the term ‘‘storm resistant submitted. The proposed rule said that and obtaining coverage under an NPDES shelter’’ to include completely roofed the ‘‘no exposure’’ certification notice permit,’’ if changes occur at the facility and walled buildings or structures, as must be submitted ‘‘at the beginning of which cause exposure of industrial well as structures with only a top cover each permit term or prior to activities or materials to storm water. but no side coverings, provided material commencing discharges during a permit The comments expressed the difficultly under the structure is not otherwise term.’’ Some commenters interpreted of immediate compliance. EPA expects subject to any run-on and subsequent this statement to mean that existing that most facility changes can be runoff of storm water. While the Agency facilities can only submit the anticipated, therefore dischargers intends that this provision promote certification at the time a permit is being should apply for and obtain NPDES permanent ‘‘no exposure’’, EPA issued or renewed. EPA intended the permit coverage in advance of changes understands that certain vehicles could phrase ‘‘at the beginning of each permit that result in exposure to industrial pass between buildings and, during term’’ to mean ‘‘once every 5 years’’ and activities or materials. Permitting passage, be exposed to rain and snow. today’s rule reflects this clarification. authorities may grant additional time, Adequately maintained vehicles such as EPA envisions that the NPDES storm on a case-by-case basis, for preparation trucks, automobiles, forklifts, or other water program will be implemented and implementation of a storm water such general purpose vehicles at the primarily through general permits pollution prevention plan. industrial site that are not industrial which are issued for a 5 year term. Finally, today’s rule at § 122.26(g)(4) machinery, and that are not leaking Likewise the ‘‘no exposure’’ certification includes the information which must be contaminants or are not otherwise a term is 5 years. The NPDES permitting included on the ‘‘no exposure’’ source of industrial pollutants, could be authority will maintain a simple certification. Authorized States, Tribes exposed to precipitation or runoff. Such registration list that should impose only or U.S. Territories may develop their activities alone does not prevent a a minor administrative burden on the own form which includes this required discharger from being able to certify no permitting authority. The registration information, at a minimum. EPA exposure under this provision. list will allow for tracking of industrial adopted the requirements (with Similarly, trucks or other vehicles facilities claiming the exclusion. This modification) from the draft ‘‘No awaiting maintenance at vehicle change allows a facility to submit a ‘‘no Exposure Certification Form’’ published maintenance facilities, as defined at exposure’’ certification at any time as an appendix to the proposed rule. § 122.26(b)(14)(viii), that are not leaking during the term of the permit, provided Modifications were made to the draft contaminants or are not otherwise a that a new certification is submitted form to address comments received and source of industrial pollutants, are not every 5 years from the time it is first to streamline the required information. considered exposed. submitted (assuming that the facility EPA included these certification In addition, EPA recognizes that there maintains a ‘‘no exposure’’ status). Once requirements in today’s rule in order to are circumstances where permanent ‘‘no a discharger has established that the preserve its integrity. Dischargers in exposure’’ of industrial activities or facility meets the definition of ‘‘no areas where EPA is the permitting materials is not possible. Under such exposure’’, and submits the necessary authority should use the ‘‘No Exposure conditions, materials and activities may ‘‘no exposure’’ certification, the Certification’’ form included in be sheltered with temporary covers, discharger must maintain their ‘‘no Appendix 4. such as tarps, between periods of permanent enclosure. The final rule exposure’’ status. Failure to maintain 3. Definition of ‘‘No Exposure’’ ‘‘no exposure’’ at their facility could does not specify every such situation. result in the unauthorized discharge of For purposes of this section, ‘‘no EPA intends that permitting authorities pollutants to waters of the United States exposure’’ means that all industrial will address this issue on a case-by-case and enforcement for violation of the materials or activities are protected by a basis. Permitting authorities can CWA. Where a discharger believes that storm resistant shelter to prevent determine the circumstances under exposure could occur in the future due exposure to rain, snow, snowmelt, and/ which temporary structures will or will to some anticipated change at the or runoff. Industrial materials or not meet the requirements of this facility, the discharger should submit an activities include, but are not limited to, section. Until permitting authorities application and obtain coverage under material handling equipment or specifically determine otherwise, EPA an NPDES permit prior to such activities, industrial machinery, raw recommends application of the ‘‘no discharge to avoid penalties. materials, intermediate products, by- exposure’’ exclusion for temporary Where EPA is the permitting products, final products, or waste sheltering of industrial materials or authority, dischargers may submit a ‘‘no products. Material handling activities activities only during facility renovation exposure’’ certification at any time after include the storage, loading and or construction, provided that the the effective date of today’s rule. Where unloading, transportation, or temporary shelter achieves the intent of EPA is not the permitting authority, conveyance of any raw material, this section. Moreover, ‘‘exposure’’ that dischargers may not be able to submit intermediate product, final product or results from a leak in protective the certification until the non-federal waste product. However, storm resistant covering would only be considered permitting authority completes any shelter is not required for: (1) Drums, ‘‘exposure’’ if not corrected prior to the necessary statutory or regulatory barrels, tanks, and similar containers next storm water discharge event. EPA changes to adopt this ‘‘no exposure’’ that are tightly sealed, provided those received one comment requesting that provision. EPA recommends that the containers are not deteriorated and do this allowance for temporary shelter be discharger contact the permitting not leak; (2) adequately maintained limited to facility renovation or authority for guidance on when the ‘‘no vehicles used in material handling; and construction directly related to the exposure’’ certification should be (3) final products, other than products industrial activity requiring temporary submitted. that would be mobilized in storm water shelter, and be scheduled to minimize EPA received comments on the discharge (e.g., rock salt). Each of these the use of temporary shelter. Another proposed rule requirement that the three exceptions to the no exposure comment suggested placing time limits

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Today’s rule distinguishes use of temporary shelter must be related In response, EPA believes that drums between dumpsters and drums/barrels. to the renovation or construction at the and barrels that are stored outdoors pose In the Phase I Question and Answer site, and be scheduled or designed to little risk of storm water contamination document (volume 1, question 52) the minimize the use of temporary shelter. unless they are open, deteriorated or Agency noted that a covered dumpster Further, EPA agrees that the use of leaking. The Agency has modified containing waste material that is kept temporary shelter should be limited in today’s rule accordingly. EPA intends outside is not considered ‘‘exposed’’ as duration, but does not intend to define the term ‘‘open’’ to mean any container long as ‘‘the container is completely ‘‘temporary’’ or ‘‘prolonged period’’. that is not tightly sealed and ‘‘sealed’’ to covered and nothing can drain out holes Many final products are intended for mean banded or otherwise secured and in the bottom, or is lost in loading onto outdoor use and pose little risk of storm without operational taps or valves. a garbage truck.’’ EPA affirms this water contamination, such as new cars. Drums, barrels, tanks, and similar approach today. Industrial refuse and Therefore, final products, except those containers may only be stored outdoors industrial trash that is left uncovered is that can be mobilized in storm water under this conditional exclusion. The deemed ‘‘exposed.’’ discharge, can be ‘‘exposed’’ and still addition of material to or withdrawing For purposes of this provision, allow the discharge to certify ‘‘no of material from these containers while particulate matter emissions from roof exposure’’. EPA intends the term ‘‘final outside is deemed ‘‘exposure’’. Moving stacks/vents that are regulated and in products’’ to mean those products that the containers while outside does not compliance under other environmental are not used in producing another create ‘‘exposure’’ provided that the protection programs, such as air quality product. Any product that can be used containers are not open, deteriorated or control programs, and that do not cause to make another product is considered leaking. In order to complete the ‘‘no storm water contamination, are an ‘‘intermediate product.’’ For exposure’’ certification, a facility considered ‘‘not exposed.’’ EPA example, a facility that makes horse received comments on the phrase in the trailers can store the finished trailers operator must inspect all drums, barrels, outdoors as a final product. The storage tanks or other containers stored outside draft ‘‘no exposure’’ certification form of those final products does not prevent to ensure that they are not open, that asked whether ‘‘particulate eligibility to claim ‘‘no exposure’’. deteriorated, or leaking. EPA emissions from roof stacks/vents not However, any facility that makes parts recommends that the discharger otherwise regulated, and in quantities for the horse trailers (e.g., metal tubing, designate someone at the facility to detectable in the storm water outflow,’’ sheet metal, paint) is not eligible for the conduct frequent inspections to verify are exposed to precipitation. One ‘‘no exposure’’ exclusion from that the drums, barrels, tanks or other comment expressed concern that the permitting if those ‘‘intermediate containers remain in a condition such phrase ‘‘in quantities detectable in the products’’ are stored outdoors (i.e., that they are not open, deteriorated or storm water outflow’’ implies that the ‘‘exposed’’). leaking. Drums, barrels, tanks or other facility must conduct monitoring prior EPA received comments related to containers stored outside that have to completing the checklist, and must materials in drums, barrels, tanks and valves which are used to put material in continue to monitor after receiving the similar containers. Some comments or take material out of the container, no exposure exclusion, in order to be objected to the language in the preamble and that have dripped or may drip, are able to verify compliance with the no to the proposed rule that would have considered to be ‘‘leaking’’ and must be exposure provision. Another comment recommended that the ‘‘exposure’’ under a storm resistant shelter in order said that current measurement determination for drums and barrels be to qualify for the no exposure exclusion. technology allows detection of based on the ‘‘potential to leak.’’ Those Likewise, leaking pipes containing pollutants at levels that may not cause comments said that all drums and contaminants exposed to storm water environmental harm. EPA does not barrels have the potential to leak, are deemed ‘‘exposed.’’ If at any time intend to require monitoring of runoff thereby making certification impossible. drums, barrels, tanks or similar from facilities with roof stacks/vents They recommended allowing outdoor containers are opened, deteriorated or prior to or after completing and storage of drums and barrels except for leaking, the discharger should take submitting the no exposure certification. those that ‘‘are leaking’’ at the time of immediate actions to close or replace EPA has thus replaced the phrase ‘‘in certification. Other comments suggested the container. Any resulting quantities detectable’’ with ‘‘evident’’ to allowing drums and barrels to be stored unpermitted discharge would violate convey the message that emissions from outside only if the drums and barrels: the CWA. The Director, the operator of some roof stacks/vents have the are empty; have secondary containment; the MS4, or the municipality may potential to contaminate storm water or there is a spill contingency plan in inspect the facility to verify that all of discharges in quantities that are place. Opposing comments suggested the applicable areas meet the ‘‘no considered significant or that cause or that allowing outdoor exposure of exposure’’ conditions as specified in the contribute to a water quality standards drums and barrels, based on existing rule language. In requiring submission violation. In those instances where the integrity and condition, is inconsistent of the conditional ‘‘no exposure’’ permitting authority determines that with the ‘‘however packaged’’ proposed certification and allowing the permitting particulate emissions from facility roof rule language, and also would not authority and the operator of the MS4 to stacks/vents are a significant contributor satisfy the Ninth Circuit remand. The inspect the facility, today’s rule does not of pollutants or contributing to water comments point out that the former rule rely on the unverified judgment of the quality violations, the permitting was invalidated by the court in part facility to determine that the no authority may require the discharger to because it relied on the ‘‘unverified exposure provision is being met. apply for and obtain coverage under a

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While EPA EPA received a comment requesting inception and allowed to participate in believes it is important that the program an allowance under the ‘‘no exposure’’ the decision making process. be adequately funded, today’s rule does provision for industrial facilities with In a time of limited staff and financial not address appropriate mechanisms or several outfalls at a site where some, but resources, public volunteers offer levels for such funding. not all of the outfalls drain non-exposed diverse backgrounds and expertise that EPA received comments expressing areas. The commenter provided an may be used to plan, develop, and concern that considerable public example of an industrial facility that has implement a program that is tailored to involvement requirements could result 5 outfalls draining different areas of the local needs (e.g., participate in public in increased litigation. EPA is not site, where two of those outfalls drain meetings and other opportunities for convinced there is a correlation between areas where industrial activities or input, perform lawful volunteer meaningful public education programs materials are not exposed to storm monitoring, assist in program and any increased probability of water. The comment requested that the coordination with other preexisting and litigation. facility in this example be allowed to related programs, aid in the Finally, EPA received comments submit a ‘‘no exposure’’ certification in development and distribution of stating that the Agency should not en order to be relieved of permitting educational materials, and provide courage volunteer monitoring unless obligations for discharges from those public training activities). The public’s proper procedures are followed. EPA two outfalls. participation is also useful in the areas agrees. EPA encourages only lawful EPA agrees, but the comment would of information dissemination/education monitoring, i.e., obtaining the necessary be implemented on an outfall-by-outfall and reporting of violators, where large approval if there is any question about basis in the permitting process, not numbers of community members can be lawful access to sites. Moreover, as a through the ‘‘no exposure’’ exclusion. more effective than a few regulators. matter of good practice and to enhance The ‘‘no exposure’’ provision was The public can also petition the the validity and usefulness of the developed to allow exclusion from NPDES permitting authority to require results, any party, public or private, permitting of discharges from entire an NPDES permit for a discharge conducting water quality monitoring is industrial facilities (except composed entirely of storm water that encouraged to use appropriate quality construction), based on a claim of ‘‘no contributes to a violation of a water control procedures and approved exposure’’ for all areas of the facility quality standard or is a significant sampling and analytic methods. where industrial materials or activities contributor of pollutants to waters of the occur. Where exposure to industrial United States. In evaluating such a L. Water Quality Issues materials or activities exist at some but petition, the NPDES permitting 1. Water Quality Based Effluent Limits not all areas of the facility, the ‘‘no authority is encouraged to consider the exposure’’ exclusion from permitting is set of designation criteria developed for In addition to technology based not allowed because permit coverage is the evaluation of small MS4s located requirements, all point source still required for storm water discharges outside of an urbanized area in places discharges of industrial storm water are from the exposed areas. Relief from with a population of at least 10,000 and subject to more stringent NPDES permit requirements for outfalls a population density of 1,000 or more. permitting requirements when draining non-exposed areas should be Furthermore, any person can protect necessary to meet water quality addressed through the permit process, water bodies by taking civil action standards. CWA sections 402(p)(3)(A) in coordination with the permitting under section 505 of the CWA against and 301(b)(1)(C). For municipal separate authority. Most NPDES general permits any person who is alleged to be in storm sewers, EPA or the State may for storm water discharge provide violation of an effluent standard or determine that other permit provisions enough flexibility to allow minimal or permit condition. If civil action is taken, (e.g. one of the minimum measures) are no requirements for non-exposed areas EPA encourages citizen plaintiffs to appropriate to protect water quality and, at industrial facilities. If the permitting resolve any disagreements or concerns for discharges to impaired waters, to authority determines that additional directly with the parties involved, either achieve reasonable further progress flexibility is needed for this scenario, informally or through any available toward attainment of water quality the permits could be modified as alternative dispute resolution process. standards pending implementation of a necessary. EPA recognizes that public TMDL. CWA section 402(p)(3)(B)(iii). involvement and participation pose See Defenders of Wildlife, et al. K. Public Involvement/Public Role challenges. It requires a substantial Browner, No. 98–71080 (9th cir., August The Phase II FACA Subcommittee initial investment of staff and financial 11, 1999). Discharges of storm water discussed the appropriate role of the resources, which could be very limited. also must comply with applicable public in successful implementation of Even with this investment, the public antidegradation policies and a municipal storm water program. EPA might not be interested in participating. implementation methods to maintain believes that an educated and actively In addition, public participation could and protect water quality. 40 CFR involved public is essential to a slow down the decision making process. 131.12. Section 122.34(a) emphasizes successful municipal storm water However, the benefits are numerous. this point by specifically noting that a program. An educated public increases EPA encourages members of the storm water management program program compliance from residents and public to contact the NPDES permitting designed to reduce the discharge of businesses as they realize their authority or local MS4s operator for pollutants from the storm sewer system individual and collective responsibility information on the municipal storm ‘‘to the maximum extent practicable’’ is for protecting water resources (e.g., the water program and ways to participate. also designed to protect water quality.

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Permits issued to non-municipal appropriate for NPDES storm water One commenter challenged the sources of storm water must include permits, EPA is adopting an interim Interim Permitting Policy on a water quality-based effluent limits permitting approach for regulating wet procedural basis, arguing that it was where necessary to meet water quality weather storm water discharges. Due to published without opportunity for standards. the nature of storm water discharges, public notice and comment. In Commenters challenged EPA’s and the typical lack of information on response, EPA notes that the Policy was interpretation of the CWA as requiring which to base numeric water quality- included verbatim and made available water quality-based effluent limits for based effluent limitations (expressed as for public comment in the proposal to MS4s when necessary to protect water concentration and mass), EPA will use today’s final rule. Prior to that proposal, quality. Commenters asserted that CWA an interim permitting approach for the Agency defended the application of 402(p)(3)(B), which addresses permit NPDES storm water permits. the Policy on a case-by-case basis in requirements for municipal discharges, ‘‘The interim permitting approach individual permit proceedings. limits the scope of municipal program uses best management practices (BMPs) Moreover, the essential elements of the requirements to an effective prohibition in first-round storm water permits, and Policy—that narrative effluent on non-storm water discharges to a expanded or better-tailored BMPs in limitations are the most appropriate separate storm sewer and to controls subsequent permits, where necessary, to form of effluent limitations for storm which reduce pollutants to the provide for the attainment of water water dischargers from municipal ‘‘maximum extent practicable, including quality standards. In cases where sources—was inherent in § 122.34(a) of management practices, control adequate information exists to develop the proposed rule, and was the subject techniques and system design and more specific conditions or limitations of extensive public comment. In any engineering methods.’’ They asserted to meet water quality standards, these event, the Policy does not constitute a that the final rule should clarify that conditions or limitations are to be binding obligation. It is policy, not neither numeric nor narrative water incorporated into storm water permits, regulation. quality-based limits are appropriate or as necessary and appropriate. This Consistent with the recognition of authorized for MS4s. interim permitting approach is not data needs underlying the Policy, EPA EPA disagrees that section 402(p)(3) intended to affect those storm water will evaluate the small MS4 storm water divests permitting authorities of the permits that already include regulations after the second round of tools necessary to issue permits to meet appropriately derived numeric water permit issuance. Section 122.34(e)(2) of water quality standards. Section quality-based effluent limitations. Since today’s rule expressly provides that for 402(p)(3)(B)(iii) specifically preserves the interim permitting approach only the interim ten-year period, ‘‘EPA the authority for EPA or the State to addresses water quality-based effluent strongly recommends that until the include other provisions determined evaluation of the storm water program limitations, it also does not affect appropriate to reduce pollutants in in § 122.37, no additional requirements technology-based effluent limitations, order to protect water quality. Defenders beyond the minimum control measures such as those based on effluent of Wildlife, slip op. at 11688. Small be imposed on regulated small MS4s limitations guidelines or developed MS4s regulated under today’s rule are without the agreement of the operator of using best professional judgment, that designated under CWA 402(p)(6) ‘‘to the affected small MS4, except where an are incorporated into storm water protect water quality.’’ approved TMDL or equivalent analysis permits. Commenters argued that water quality provides adequate information to standards, particularly numeric criteria, ‘‘Each storm water permit should develop more specific measures to were not designed to address storm include a coordinated and cost-effective protect water quality.’’ This approach water discharges. The episodic nature monitoring program to gather necessary addresses the concern for protecting and magnitude of storm water events, information to determine the extent to water resources from the threat posed by they argue, make it impossible to apply which the permit provides for storm water discharges with the the ‘‘end of pipe’’ compliance attainment of applicable water quality important qualification that there must assessment approach, for example, in standards and to determine the be adequate information on the the development of water quality based appropriate conditions or limitations of watershed or a specific site as a basis for effluent limits. subsequent permits. Such a monitoring requiring tailored storm water controls EPA’s disagrees with the commenters program may include ambient beyond the minimum control measures. arguments about the inability of water monitoring, receiving water assessment, As indicated, the Interim Permitting quality criteria to address high flow discharge monitoring (as needed), or a Policy has several important conditions. Today’s final rule does, combination of monitoring procedures limitations—it does not apply to however, address the concern that designed to gather necessary technology-based controls or to sources numeric effluent limits will necessitate information. that already have numeric end of pipe end of pipe treatment and the need to ‘‘This interim permitting approach effluent limitations. EPA encourages provide a workable alternative. applies only to EPA; however, EPA also authorized States and Tribes to adopt Today’s rule was developed under the encourages authorized States and Tribes policies similar to the Interim approach outlined in the Interim to adopt similar policies for storm water Permitting Policy when developing Permitting Policy for Water Quality- permits. This interim permitting storm water discharge programs. For a Based Effluent Limitations in Storm approach provides time, where discussion of appropriate monitoring Water Permits, issued on August 1, necessary, to more fully assess the range activities, see Section H.3.d., Evaluation 1996. 61 FR 43761 (November 26, 1996) of issues and possible options for the and Assessment. (the ‘‘Interim Permitting Policy’’). EPA control of storm water discharges for the Where a water quality analysis intends to issue NPDES permits protection of water quality. This interim indicates there is a need and basis for consistent with the Interim Permitting permitting approach may be modified as deriving water quality-based effluent Policy, which provides as follows: a result of the ongoing Urban Wet limits in NPDES permits for storm water In response to recent questions Weather Flows Federal Advisory discharges regulated under today’s rule, regarding the type of water quality- Committee policy dialogue on this EPA believes that most of these cases based effluent limitations that are most subject.’’ would be satisfied by narrative effluent

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68789 limitations that require the criteria, variances to the criteria during general use classifications, a State or implementation of BMPs. NPDES permit wet weather events, and seasonal Tribe must ensure that the criteria are limits will in most cases continue to be designated uses. Other commenters sufficiently protective to safeguard the based on the specific approach outlined noted that water quality-based effluent full range of waters of the State, i.e., in today’s rule for the implementation of limits in NPDES permits have criteria would be based on the most BMPs as the most appropriate form of traditionally been developed based on sensitive use. This approach has been effluent limitation to satisfy technology dry weather flow conditions (e.g., disputed, especially for aquatic life and water quality-based requirements. assuming critical low-flow conditions in uses, where evidence suggests that the See § 122.34(a). For storm water the receiving water to ensure protection general use criteria will require controls management plans with existing BMPs, of aquatic life and human health). Wet more stringent than needed to protect this may require further tailoring of weather discharges, however, typically the existing or potential aquatic life BMPs to address the pollutant(s) of occur under high-flow conditions in the community for a specific water body. concern, the nature of the discharge and receiving water. Assumptions regarding EPA recognizes that there is a growing the receiving water. If the permitting mass balance equations and size of need to more precisely tailor use authority determines that, through mixing zones may also not be pertinent descriptions and criteria to match site- implementation of appropriate BMPs during wet weather. specific conditions, ensuring that uses required by the NPDES storm water EPA acknowledges the need to devise and criteria provide an appropriate level permit, the discharge has the necessary a regulatory program that is both of protection, which, to the extent controls to provide for attainment of flexible enough to accommodate the possible, are not overprotective. EPA is water quality standards, additional episodic nature, variability and volume engaged in an ongoing evaluation of its controls are not needed in the permit. of wet weather discharges and regulations in this area through the Conversely, if a discharger (MS4, prescriptive enough to ensure protection ANPRM effort. At the same time, EPA industrial or construction) fails to adopt of the water resource. EPA believes that continues to encourage States and and implement adequate BMPs, the wet weather discharges can be Tribes to review the applicability of the permittee and/or the permitting adequately addressed in the existing designated uses and associated criteria authority should consider a different regulations through refining designated using existing provisions in the water mix of BMPs or more specific uses and assigning criteria that are quality standards regulation. conditions to ensure water quality tailored to the level of water quality 2. Total Maximum Daily Loads and protection. protection described by the refined Some commenters observed that there designated use. Analysis To Determine the Need for was no evidence from the experience of EPA believes that lack of precision in Water Quality-Based Limitations storm water dischargers regulated under assigning designated uses and The development and implementation the existing NPDES storm water corresponding criteria by States and of total maximum daily loads (TMDLs) program, or from studies or reports that Tribes, in many cases may result in provide a link between water quality allegedly support EPA’s position, that application of water quality criteria that standards and effluent limitations. CWA implementation of BMPs to satisfy the may not appropriately match the section 303(d) requires States to develop six minimum control measures would intended condition of the water body. TMDLs to provide more stringent water meet applicable water quality standards States and Tribes have frequently quality-based controls when technology- for a regulated small MS4. In response, designated uses without regard to site- based controls are inadequate to achieve EPA acknowledges that the six specific wet weather conditions. applicable water quality standards. A minimum measures are intended to Because certain uses (swimming, for TMDL is the sum of the individual implement the statutory requirement to example) might not exist during high- wasteload allocations for point sources control discharges to the maximum intensity storm events or in the winter, and load allocations for nonpoint extent practicable, and they may not States may factor such climatic sources, with consideration for natural result in the attainment of water quality conditions and seasonal uses into their background conditions. A TMDL standards in all cases. The control use designations with appropriate quantifies the maximum allowable measures do, however, focus on and analyses. This would acknowledge that loading of a pollutant to a water body address well-documented threats to a lower level of control, at lower and allocates this maximum load to water quality associated with storm compliance cost, would be appropriate contributing point and nonpoint sources water discharges. Based on the to protect that use. Before modifying so that water quality criteria will not be collective expertise of the FACA Sub- any designated use, however, States exceeded and designated uses will be committee, EPA believes that would need to evaluate the effect of less protected. A TMDL also includes a implementation of the six minimum stringent water quality criteria on margin of safety to account for measures will, for most regulated small protecting other uses, including any uncertainty about the relationship MS4s, be adequate to protect water threatened or endangered species, between pollutant loads and water quality, and for other regulated small drinking water supplies and quality. MS4s will substantially reduce the downstream uses. EPA will further Today’s final rule refers to TMDLs in adverse impacts of their discharges on evaluate these issues in the context of several provisions. For the purpose of water quality. the Water Quality Standards Regulation, today’s rule, EPA relies on the Some commenters asserted that Advance Notice of Proposed Rule component of the TMDL that evaluates analyses of existing water quality Making (ANPRM), 63 FR, 36742, July 7, existing conditions and allocates loads. criteria suggest that numeric criteria for 1998. For discharges to waters that are not aquatic life may be overprotective if One of the major themes presented by impaired and for which a TMDL has not applied to storm water discharges. EPA in the ANPRM is that refinement been developed, today’s rule also refers These comments maintained that an in use designations and tailoring of to an ‘‘equivalent analysis.’’ The approach that prohibits exceedance of water quality criteria to match refined discussion that follows uses the term applicable water quality criteria is use designations is an important future ‘‘TMDL’’ for both. unworkable. Various commenters direction of the water quality standards Under revised § 122.26(a)(9)(i)(C), the recommended wet weather specific program. In assigning criteria to protect permitting authority may designate

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68790 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations storm water discharges that require where necessary, may be numeric exceptions to this prohibition known as NPDES permits based on TMDLs that pollutant effluent limitations. ‘‘antibacksliding exceptions.’’ address the pollutants of concern. For Commenters, generally from the The issue of backsliding from prior storm water discharges associated with regulated community, objected that, due permit limits, standards, or conditions small construction activity, to references to the need to develop a is not expected to initially apply to most § 122.26(b)(15)(i)(B) provides a waiver program ‘‘to protect water quality’’ and storm water dischargers designated provision where it may be determined to additional NPDES permit under today’s proposal because they that storm water controls are not needed requirements beyond the minimum generally have not been previously based on TMDLs that address sediment control measures based on TMDLs or authorized by an NPDES permit. and any other pollutants of concern. their equivalent, regulated small MS4s However, the backsliding prohibition The NPDES permitting authority may will be subject to uncertain permit would apply if a storm water discharge waive requirements under the program limitations beyond the six minimum was previously covered under another for certain small MS4s within urbanized control measures. Commenters also NPDES permit. Also, the backsliding areas serving less than 1,000 persons asserted that through the imposition of prohibition could apply when an provided that, if the small MS4 a wasteload allocation under a TMDL in NPDES storm water permit is reissued, discharges any pollutant that has been impaired water bodies, there is a renewed, or modified. In most cases, identified as a cause of impairment of a likelihood that unattainable, yet however, EPA does not believe that water body into which it discharges, the enforceable narrative and numeric these provisions would restrict revisions discharge is in compliance with a standards will be imposed on regulated to storm water NPDES permits. wasteload allocation in a TMDL for the small MS4s. One commenter questioned whether, if BMPs implemented by a regulated pollutant of concern. The permitting As is discussed in the preceding small MS4 operator fail to produce authority may also waive requirements section, NPDES permits must include results in removal of pollutants and the for MS4s in urbanized areas serving any more stringent limitations when permittee attempts to substitute a more between 1,000 and 10,000 persons, if necessary to meet water quality the permitting authority determines that effective BMP, the small MS4 operator standards. However, even if a regulated could be accused of violating the anti- storm water controls are not needed, as small MS4 is subject to water quality provided in § 123.35(d)(2). See backsliding provisions and also be based effluent limits, such limits may be exposed to citizen lawsuits. In response, § 122.32(c). in the form of narrative effluent Under CWA section 303(d), States EPA notes that in such circumstances limitations that require the identify which of their water bodies the MS4’s permit has not changed and, implementation of BMPs. As discussed need TMDLs and rank them in order of therefore, the prohibition against earlier, EPA has adopted the Interim priority. Generally, once a TMDL has backsliding is not applicable. Further, Permitting Policy and incorporated it in been completed for one or more any change in the mix of BMPs that was pollutants in a water body, a wasteload the development of today’s rule to intended to be more effective at allocation for each point source recognize the appropriateness of BMP- controlling pollutants would not be discharging the pollutant(s) is based limits developed on a case-by- considered backsliding, even if it did implemented as an enforceable case basis. not include all of the previously condition in the NPDES permit. EPA formed a Federal Advisory implemented BMPs. Regulated small MS4s are essentially Committee to provide advice to EPA on identifying water quality-limited water 4. Water Quality-Based Waivers and like other point source discharges for Designations purposes of the TMDL process. bodies, establishing TMDLs for them as A TMDL and the resulting wasteload appropriate, and developing appropriate Several sections of today’s final rule allocations for pollutant(s) of concern in watershed protection programs for these refer to water quality standards in a water body may not be available impaired waters in accordance with identifying those storm water discharges because the water body is not on the CWA section 303(d). Operating under that are and are not required to be State’s 303(d) list, the TMDL has not yet the auspices of the National Advisory permitted under today’s rule. As noted been completed, or the TMDL did not Council for Environmental Policy and in § 122.30 of today’s rule, CWA section include specific pollutants of concern. Technology (NACEPT), the committee 402(p)(6) requires the designation of In these cases, the permitting authority produced its Report of the Federal municipal storm water sources that must determine whether point sources Advisory Committee on the Total need to be regulated to protect water discharge pollutant(s) in amounts that Maximum Daily Load (TMDL) Program quality and the establishment of a cause, have the reasonable potential to (July 1998). EPA recently published a comprehensive storm water program to cause, or contribute to excursions above proposed rule to implement the Report’s regulate these sources. Requirements State water quality standards, including recommendations (64 FR 46012, August applicable to certain municipal sources narrative water quality criteria. This so- 23, 1999). may be waived based on the absence of demonstrable water quality impacts. called ‘‘reasonable potential’’ analysis is 3. Anti-Backsliding intended to determine whether and for Section 122.32(c). The section 402(p)(6) what pollutants water quality based In general, the term ‘‘anti- mandate to protect water quality also effluent limits are required. The analysis backsliding’’ refers to statutory provides the basis for regulating is, in effect, a substitute for a similar provisions at CWA sections 303(d)(4) discharges associated with small determination that would be made as and 402(o) and regulatory provisions at construction. See also § 122.26(b)(15)(i). part of a TMDL, where necessary. When 40 CFR 122.44(l). These provisions Further, today’s rule carries forward the ‘‘reasonable potential’’ exists, prohibit the renewal, reissuance, or existing authority for the permitting regulations at § 122.44(d) require a modification of an existing NPDES authority to designate sources of storm water quality-based effluent limit for the permit that contain effluent limits, water discharges based upon water pollutant(s) of concern in NPDES permit terms, limitations and quality considerations. Section permits. The water quality-based conditions, or standards that are less 122.26(a)(9)(i)(C) and (D). effluent limits may be narrative stringent than those established in the As is discussed above in sections requirements to implement BMPs or, previous permit. There are also II.H.2.e (for small MS4s) and II.I.1.b.ii

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(for small construction), the threat to water quality that was the basis because there is not an initial outlay of requirements of today’s rule may be for EPA’s designation. capital costs with benefits accruing in waived based on wasteload allocations the future (i.e., benefits and costs are III. Cost-Benefit Analysis that are part of ‘‘total maximum daily almost immediately at a steady state), it loads’’ (TMDLs) that address the EPA has determined that the range of is not necessary to discount costs in pollutants of concern or, in the case of the rule’s benefits exceeds the range of order to account for a time differential. small construction and municipalities regulatory costs. The estimated rule EPA developed detailed estimates of serving between 1,000 and 10,000 costs range from $847.6 million to the costs and benefits of complying with persons, the equivalents of TMDLs. One $981.3 million annually with each of the incremental requirements commenter stated that waivers would corresponding estimated monetized imposed by the rule. The Agency used allow exemptions to the technology annual benefits which range from two approaches, a national water quality based requirements and would thus be $671.5 million to $1.628 billion, model and national water quality inconsistent with the two-fold approach expected to exceed costs. assessment, to estimate the potential of the CWA (a technology based The rule’s cost and benefit estimates benefits of the rule. Both approaches minimum and a water quality based are based on an annual comparison of show that the benefits are likely to overlay). EPA acknowledges that costs and benefits for a representative exceed costs. waivers are not allowed for other year (1998) in which the rule is These estimates, including technology-based requirements under implemented. This differs from the descriptions of the methodology and the CWA. A more flexible approach is approach used for the proposed rule assumptions used, are described in allowed, however, for sources which projected cost and benefits over detail in the Economic Analysis of the designated for regulation under three permit terms. EPA has chosen to Final Phase II Rule, which is included 402(p)(6) to protect water quality. For use the current approach because it in the record of this rule making. such sources EPA may allow a waiver determined that the ratio of annual Exhibit 3 summarizes costs and benefits where it is demonstrated that an benefits and costs would not change associated with the basic elements of individual source does not present the significantly over time. Moreover, today’s rule.

EXHIBIT 3.ÐCOMPARISON OF ANNUAL COMPLIANCE COST AND BENEFIT ESTIMATES 1

National water National water quality model quality assess- Monetized benefits (millions of 1998 ment (millions of dollars) 1998 dollars)

Municipal Minimum Measures ...... $131.0±$410.2 Controls for Construction Sites ...... $540.5±$686.0

Total Annual Benefits ...... $1,628.5 ...... $671.5±$1,096.2

Costs Millions of 1998 dollars 2

Municipal Minimum Measures ...... $297.3 Controls/Waivers for Construction Sites ...... $545.0±$678.7 Federal/State Administrative Costs ...... $5.3

Total Annual Costs $847.6±$981.31 1 National level benefits are not inclusive of all categories of benefits that can be expected to result from the regulation. 2 Total may not add due to rounding.

A. Costs To address the concerns of the program costs for automatically commenters, EPA utilized a National designated municipalities. EPA also 1. Municipal Costs Association of Flood and Stormwater estimated an average annual per Initially, to determine municipal costs Management Agencies (NAFSMA) household administrative cost for for the proposed rule, EPA used survey of the Phase II community to municipalities to address application, anticipated expenditure data included obtain incremental cost estimates for record keeping, and reporting in permit applications from a sample of Phase II municipalities. Using the list of requirements of the Rule. The total 21 Phase I MS4s. Certain commenters potential Phase II designees published average per household cost of the rule criticized the Agency for using in the Federal Register (63 FR 1616), is expected to $9.16 per household. anticipated expenditures because they NAFSMA contacted more than 1,600 To determine potential national level could be significantly different from the jurisdictions. The goal of the survey was costs for municipalities, EPA multiplied actual expenditures. These commenters to solicit information from those the number of households (32.5 million) suggested that the Agency use the actual communities about the proposed Phase by the per household cost ($9.16). EPA cost incurred by the Phase I MS4s. II NPDES storm water program. Several estimates the annual cost of the Phase Other comments stated that because the of the survey questions corresponded II municipal program at $298 million. Phase I MS4s, in general, are large directly to the minimum measures As an alternative method, and point municipalities, they may not be required by the Phase II rule. One of comparison, to the NAFSMA-based representative of the Phase II MS4s for hundred twenty-one surveys were approach, EPA reviewed actual estimating regulatory costs. Finally, one returned to NAFSMA and were used to expenditures reported from 35 Phase I commenter noted that the sample of 21 develop municipal costs. MS4s. The Agency targeted these 35 municipalities used to project cost was Using the NAFSMA information, EPA Phase I MS4s because they had relatively small. estimated average annual per household participated in the NPDES program for

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68792 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations nearly one permit term, were smaller in Ultimately, EPA estimated that 110,223 because EPA believed those costs would size and had detailed data reflecting construction starts would be be negligible. However, in response to their actual program implementation incrementally covered by the rule public comments, EPA has estimated costs. Of the 35 MS4s, appropriate cost annually. these potential costs. data was only available for 26 of those EPA then used standard cost EPA has also estimated the potential MS4s. EPA analyzed the expenditure estimates from Building Construction costs for construction site operators to data and identified the relevant Cost Data and Site Work Landscape implement the post-construction expenditures, excluding costs presented Cost Data (R.S. Means, 1997a and minimum measure. These are costs that in the annual reports unrelated to the 1997b) to estimate construction BMP may be incurred by construction site requirements of the Rule. The cost range costs for 27 model sites in a variety of operators if the MS4 chooses to meet the and annual per household program typical site conditions across the United post-construction minimum measure by costs of $9.08 are similar to those found States. The model sites included three requiring on-site structural, site-by-site using the NAFSMA survey data. different site sizes (one, three and five control of post-construction runoff. acres), three slope variations (3%, 7%, Municipalities may select from an array 2. Construction Costs and 12%), and three soil erosivity of structural and non-structural options In order to estimate the rule’s conditions (low, medium, and high). in implementing this measure, so the construction-related cost on a national EPA chose BMP combinations potential costs to construction operators level (the soil and erosion controls appropriate to the model site is uncertain. Nonetheless, EPA (SEC) requirements of the rule and the conditions. Based on the assumption developed average annual BMP costs for potential impacts of the post- that any combination of site factors is sites of one, three, five and seven acres. construction municipal measure on equally likely to occur in a given site, EPA’s analysis accounted for varying construction), EPA estimated a per site EPA developed average cost of sediment levels of imperviousness that cost for sites of one, three, and five acres and erosion control for all model sites. characterize residential, commercial, and multiplied these costs by the total EPA estimated that, on average, BMPs and institutional land uses. Nationwide, number of estimated Phase II for a 1 acre site will cost $1,206, for a these costs are expected to range from construction starts across these size 3 acre site $4,598 and for a 5 acre site $44 million to $178 million annually. categories. $8,709. Finally, to establish national To estimate the percentage of starts EPA then estimated administrative incremental annual costs for Phase II subject to the soil and erosion control costs per construction site for the construction starts, EPA multiplied the requirements between 1 and 5 acres, following elements required under the total costs of compliance for the chosen with respect to each category of building rule: Submittal of a notice of intent for site size categories by the total number permits (residential, commercial, etc.), permit coverage; notification to of Phase II construction starts and added EPA initially used data from Prince municipalities; development of a storm post-construction costs. EPA estimates George’s County (PGC), Maryland, and water pollution prevention plan; record the annual compliance cost to range applied these percentages to national retention; and submittal of a notice of from $545 million to $678.7 million. totals. In the proposal, EPA recognized termination. EPA estimated the average B. Quantitative Benefits that the PGC data may not be total administrative cost per site to be representative of the entire country and $937. In the Economic Analysis for the requested data that could be used to EPA also considered the cost proposed rule, a ‘‘top-down’’ approach develop better estimates of the number implications of NPDES permit was used to estimate economic benefits. of construction sites between 1 and 5 authorities waiving the applicability of Under this approach, the combined acres. EPA did not receive any requirements to storm water discharges economic benefits for wet weather substantiated national data from from small construction sites based on programs were estimated first, and then commenters. two different criteria involving water were divided among various water In view of the unavailability of quality impact and low rainfall. EPA programs on the basis of expert opinion. national data from commenters, EPA received comments stating that a waiver As a result, the benefits estimates for an made extensive efforts to collect would require a significant investment individual program were rather construction site data around the in training or acquisition of a uncertain. Moreover, this approach was country. The Agency contacted more consultant. Based on comments inconsistent with the approach used to than 75 municipalities. EPA determined received, EPA eliminated one of the estimate the cost of the proposed storm that 14 of the contacted municipalities waiver conditions involving low soil water rule, which was developed using had useable construction site data. loss threshold because it necessitated municipal-based and cost-based data to Using data from these 14 municipalities, use of the Revised Universal Soil Loss develop ‘‘bottom-up’’ costs. Therefore, EPA developed an estimate of the Equation which could require extensive EPA decided to use a ‘‘bottom-up’’ percentage of construction starts on one technical expertise. approach for estimating benefits of the to five acres. EPA then multiplied this Based on the opinions of construction Phase II rule. To adequately reflect the percentage by the number of building industry experts, EPA estimates that 15 quantifiable benefits of the rule, EPA permits issued nationwide to determine percent of the construction sites that used two different methods: (1) National the total number of construction starts would otherwise be covered by today’s Water Quality Model and (2) National occurring on one to five acres. Finally, rule will be eligible to receive waivers. Water Quality Assessment. to isolate the number of construction Therefore, the Agency has excluded 15 To monetize benefits in both starts incrementally regulated by Phase percent of the construction sites when approaches, the Agency applied Carson II, EPA subtracted the number of deriving costs of sediment and erosion and Mitchell’s (1993) estimates of activities regulated under equivalent control. The average cost for sites to household willingness-to-pay (WTP) for programs (e.g., areas covered by the qualify for the waiver is expected to be water quality improvement to estimates Coastal Zone Act Reauthorization $34 per site. The construction cost of waters impaired by storm water Amendments of 1990, and areas covered analysis for the proposed rule did not discharges. Carson and Mitchell’s 1993 by equivalent State level soil and include any costs for the preparation study reports the results of their 1983 erosion control requirements). and submission of waiver applications national survey of WTP for incremental

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68793 improvements in fresh water quality. United States. The model analyzes occurs in waters that are not close to Carson and Mitchell estimate the WTP water quality changes by stream reach. population centers the economic value for three minimum levels of fresh water The parameters modeled in the is lower. Therefore, benefits are quality: boatable, fishable, and sizable. NWPCAM are biological oxygen estimated for local and non-local waters EPA adjusted the WTP amounts to demand (BOD), total suspended solids separately. This assumption is based on account for inflation, growth in real per (TSS), dissolved oxygen (DO), and fecal Carson and Mitchell’s survey which capita income, and increased attitudes coliforms (FC). asked respondents to apportion each of towards pollution control. The adjusted The model projects changes in water their stated WTP values between WTP amounts for improvements in quality due to the Phase II municipal achieving the water quality goals in fresh water quality are $210 for and construction site controls. To their own State and achieving those boatable, $158 for fishable, and $177 for calculate the economic benefits of goals in the nation as a whole. On sizable. A brief summary of the national change in water quality, the number of average, respondents allocated 67% of water quality model and national water households in the proximity of the their values to achieving in-State water quality assessment approaches follow. stream reach are determined, by quality goals and the remainder to the overlaying the model results on the nation as a whole. Carson and Mitchell 1. National Water Quality Model 1990 Census of Populated Places and argue that for valuing local water quality One approach EPA used to estimate Minor Civil Divisions, and updating the changes 67% is a reasonable upper the benefits of the Phase II municipal population to 1998. Economic benefits bound for the local multiplier and 33% and construction site controls was the are calculated using the Carson and for the non-local water quality changes. National Water Pollution Control Mitchell WTP values. The benefits are For the purposes of this analysis, the Assessment Model (NWPCAM). separately estimated for local and non- locality is defined as urban sites and NWPCAM estimates benefits of the local waters on the basis of WTP values associated populations linked into the storm water program at the national and proximity to water quality changes. NWPCAM framework. Using this level, including the impact on small The value of the change in use methodology, the total monetized streams. This model estimates water support for local waters is greater than benefits of Phase II control of urban and quality and the resultant use support for the value of the non-local waters construction site runoff is estimated to the 632,000 miles of rivers and streams because of the opportunity to use local be $1.628 billion per year. The local and in the USEPA Reach File Version 1 waters by the local population. This non-local benefits due to Phase II (RF1), which covers the continental model assumes that if improvement controls are presented in Exhibit 4.

EXHIBIT 4.ÐLOCAL AND NON-LOCAL BENEFITS ESTIMATES DUE TO PHASE II CONTROLS NATIONAL WATER QUALITY MODEL ESTIMATE

Local benefits Non-local bene- Total benefits Use support fits 1 ($million/yr) ($million/yr) ($million/yr)

Swimming, Fishing, and Boating ...... 306.20 60.60 366.80 Fishing and Boating ...... 395.10 51.90 447.00 Boating ...... 700.10 114.60 814.70

Total ...... 1401.40 227.10 1628.50 1 To estimate non-local willingness to pay per household, the 33% of willingness is multiplied by the fraction of previously impaired national wa- ters (in each use category) that attain the beneficial use as a result of the Phase II rule. To estimate the aggregate non-local benefits, non-local willingness to pay is multiplied with the total number of households in the US.

While the numbers of miles that are the NWPCAM as a basis for estimating though the Carson and Mitchell estimated to change their use support impairment addressed by the rule. The estimates apply to all fresh water, it is are small, the benefits estimates are Water Quality Assessment method not clear how these values would be quite significant. This is because urban separately estimates benefits associated apportioned among rivers, lakes, and runoff and, to a large extent, with improvements to fresh water, the Great Lakes. The 305(b) data construction activity occurs where the marine water and construction site indicate that lakes are the most people actually reside and the water controls, and then aggregates these impaired by urban runoff/storm sewers, quality changes mostly occur close to separate categories into an estimate of followed closely by the Great Lakes, and these population centers. NWPCAM total annual benefits. then rivers. Therefore, EPA applied the indicates that changes in pollution loads WTP values to the categories separately have the most effect immediately a. Municipal Measures and assumed that the higher resulting downstream of pollution changes. As a i. Fresh Waters Benefits value for lakes represents the high end result, the aggregate WTP is large of the range (i.e., assuming that lake because large numbers of households in In order to develop estimates for the these population centers are associated potential value of the municipal impairment is more indicative of with the local waters that reflect measures (except storm water runoff national fresh water impairment) and improvement in designated use support. controls for construction sites), EPA that the lower resulting value for applied Carson & Mitchell WTP values impaired rivers represents the low end 2. National Water Quality Assessment to estimated existing and projected of a value range for all fresh waters (i.e., EPA also estimated benefits of the future fresh water impairment. Carson & assuming that river impairment is more Phase II Storm Water program using the Mitchell did not evaluate marine waters, indicative of national fresh water 1998 National Water Quality Inventory so only fresh water values were impairment). In addition, EPA estimated (305(b)) Report to Congress, rather than available from their research. Even that the post-construction runoff

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68794 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations requirements of the municipal program EPA developed an analysis of estimates the benefits of soil and erosion might result in benefits of at least $16.8 potential benefits associated with requirements. million annually from avoided future avoided health impacts from exposure A survey of North Carolina residents runoff. The post-construction estimate to contaminants in storm sewer effluent. (Paterson et al., 1993) indicated that significantly underestimates potential Based on a study of incremental households are willing to pay for program benefits because it does not illnesses found among people who erosion and sediment controls similar to account for avoided hydrologic changes swam within one yard of storm drains those in today’s rule. Based on income and resulting water quality impairment in Santa Monica Bay, EPA estimated a and other indicators, the values derived associated with increases in range of incremental illnesses (Haile et from the study are expected to be imperviousness from development and al., 1996). Depending on assumptions similar to values held in the rest of the redevelopment. Summing the benefits made about number of exposures to country. Using the mean value of the across the water quality use support contaminants and contaminant willingness to pay of $25 per household, levels yields an estimate of benefits concentrations, benefits ranged from EPA projects annual benefits of the soil ranging from approximately $121.9 $7.0 million to $29.9 million annually. and erosion requirements to range from $540.5–$686 million. million to $378.2 million per year. b. Construction Benefits ii. Marine Waters Benefits c. Summary of Benefits From the The major pollutant resulting from National Water Quality Assessment construction activities is sediment. In addition to the fresh water benefits Total benefits from municipal captured by the Carson and Mitchell However, in addition to sediment, measures and construction site controls study, EPA anticipates benefits as a construction activities also yield are expected to range from $671.5 result of improvements to marine pollutants such as pesticides, petroleum million to $1.1 billion per year, waters. Sufficient methods have not products, and solvents. Because including benefits of approximately been developed to quantify national- circumstances will vary considerably $13.7 million per year associated with level benefits for commercial or from site to site, data is not available small stream improvements. A summary recreational fishing. EPA used beach with which to develop estimates of of the potential benefits is presented in closure data and visitation estimates benefits for each site and aggregate to Exhibit 5. from its Beach Watch Program to obtain a national-level estimate. As shown in Exhibit 5, it was not estimate potential reductions in marine In the proposed rule, EPA estimated possible to monetize all categories of swimming visits due to storm water the combined benefits of all wet weather benefits using the WTP estimates. In runoff contamination events in 1997. programs, and then used expert particular, benefits for improving The estimated 86,100 trips that did not opinions to allocate them to different marine water quality such as fishing and occur because of beach closures in individual programs. To eliminate the passive use benefits are not included in coastal Phase II communities is a lower possible overlap between the benefits of the values used to estimate the potential bound because it represents only those the soil and erosion control benefits of the municipal minimum beaches that report both closures and requirements, municipal measures, and measures (excluding construction sites visitation data. EPA estimates potential other wet weather storm water controls), and they are not estimated swimming benefits from the rule to be programs, EPA chose to use an approach separately, because information is not at least $2.1 million annually. in today’s final rule that directly currently available.

EXHIBIT 5.ÐPOTENTIAL ANNUAL BENEFITS OF THE PHASE II STORM WATER RULE NATIONAL WATER QUALITY ASSESSMENT ESTIMATE

Benefit category Annual WTP

Municipal Minimum Measures 1

Fresh Water Use and Passive Use 2 ...... $121.9±$378.2 Marine Recreational Swimming ...... $2.1 Human Health (Marine Waters) ...... $7.0±$29.9 Other Marine Use and Passive Use ...... (∂)

Erosion and Sediment Controls for Construction Sites

Fresh Water and Marine Use and Passive Use 3 ...... $540.5±$686

Total Phase II Program

Total Use & Passive Use (Fresh Water and Marine) ...... >$671.5±>$1,096.2 += positive benefits expected but not monetized. 1 Includes water quality benefit of municipal programs, based on 80% effectiveness of municipal programs. 2 Based on research by Carson and Mitchell (1993). Fresh water value only. Does not include commercial fishery, navigation, or diversionary (e.g. municipal drinking water cost savings or risk reductions) benefits. May not fully capture human health risk reduction or ecological values. 3 Based on research by Paterson et al. (1993). Although the survey's description of the benefits of reducing soil erosion from construction sites included reduced dredging, avoided flooding, and water storage capacity benefits, these benefit categories may not be fully incorporated in the WTP values. Small streams may account for over 2% of total benefits.

C. Qualitative Benefits or monetized. Thus, the current estimate because it omits many ways in which There are additional benefits to storm of monetized benefits may understate society is likely to benefit from reduced water control that cannot be quantified the true value of storm water controls storm water pollution, such as improved

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Additional information attributable to municipal storm water thus those sectors of the economy. collection requirements for regulated controls reducing downstream flooding, Discussions with representatives small MS4s and small construction sites although flood control benefits within the construction industry will occur after this initial three year associated with sediment and erosion indicate that construction costs will period and will be counted in a likely be passed on to buyers, thus not control are already reflected to some subsequent information collection seriously affecting the housing industry extent in the construction benefits. requirement. The total burden of the directly. One commenter argued that the Similarly, the Agency could not value information collection requirements for the benefits from increased property rule will have a negative employment the first three years of this rule is value due to storm water controls effect because the builders will build estimated at 56,369 hours with a reflected in the rule, even though a fewer homes requiring less building corresponding cost of $2,151,305 commenter suggested inclusion of these materials as a result of the declining benefits in the estimates. demand induced by the cost of the soil million annually. This burden and cost Moreover, while a number of and erosion controls. EPA disagrees is for industrial facilities to complete commenters requested that EPA include with this argument because the cost of and submit the no exposure ecological benefits, the Agency was not the controls, as the percentage of the certification, for NPDES-authorized able to fully monetize these benefits. price of a median home, is negligible States to process and review the no Urbanization usually increases the and will be passed on to final buyers. exposure certification, and for the amount of sediment, nutrients, metals Flexibility within the rule allows NPDES-authorized States to develop and other pollutants associated with MS4s to tailor the storm water program designation criteria and assess land disturbance and development. requirements to their needs and additional MS4s outside of urbanized Development usually not only results in financial position, minimizing impacts. areas. Compliance with the applicable a dramatic increase in the volume of For sedimentation and erosion controls information collection requirements water runoff, but also in a substantial on construction sites, the rule imposed under this rule are mandatory, decrease in that water’s quality due to contemplates application of commonly pursuant to CWA section 402. stream scour, runoff and dispersion of used BMPs to reduce costs for the construction industry. Thus, the rule Exhibit 6 presents average annual toxic pollutants, and oversiltation. burden and cost estimates for Phase II These kinds of secondary benefits could attempts to use existing practices to prevent pollution, which should respondents for the first three years. not be fully reflected in the monetized Burden means the total time, effort, or benefits. EPA was able to only monetize minimize impacts on States, Tribes, municipalities and the construction financial resources expended by persons the aquatic life support benefits for to generate, maintain, retain, disclose or waters assumed to be impaired. Thus, industry. provide information to or for a Federal only the aquatic life support benefits Thus, EPA concludes that the effect of the rule, if any, on the national economy agency. This includes the time needed attributable to municipal controls, will be minimal. The benefits of today’s to review instructions; develop, acquire, reflected through human satisfaction, rule more than offset any cost impacts install, and utilize technology and are taken into account. Reduced nutrient level is another on the national economy. systems for the purposes of collecting, benefit of the storm water control which IV. Regulatory Requirements validating, and verifying information, is not fully captured by the economic processing and maintaining A. Paperwork Reduction Act analysis. High nutrient levels often lead information, and disclosing and to eutrophication of the aquatic system. The Office of Management and Budget providing information; adjust existing The quality change in ecological sources (OMB) has approved some of the ways for complying with any previously as the result of storm water controls to information collection requirements applicable instructions and reduce pollutants is not fully reflected contained in this final rule (i.e. those requirements; train personnel to be able in the present benefits. found in 40 CFR 122.26(g) and to respond to a collection of 123.35(b)) under the provisions of the information; search data sources; D. National Economic Impact Paperwork Reduction Act, 44 U.S.C. complete and review the collection of Finally, the Agency determined that 3501 et seq. and has assigned OMB information; and transmit or otherwise the rule will have minimal impacts on control number 2040–0211. disclose the information.

EXHIBIT 6.ÐAVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTS

B (A)×(B)=C A D × Respondents Burden hours Annual re- Respondent (C) (D)=E Information collection activity per year per respond- spondent bur- labor cost ($/ Annual Cost 1 ent per year den hours ($) (projected) (projected) (predicted) (projected) hr) (1998 $)

Ind. No Expos. Facilities:2 No Expos. Certification ...... 36,377 1.0 36,377 44.35 1,613,320

Annual Subtotal ...... 36,377 ...... 1,613,320 NPDES-Authorized States:3 Designation of Addit. MS4s 4 ...... 15 332.8 4,892 26.91 131,644

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EXHIBIT 6.ÐAVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTSÐContinued

B (A)×(B)=C A D × Respondents Burden hours Annual re- Respondent (C) (D)=E Information collection activity per year per respond- spondent bur- labor cost ($/ Annual Cost 1 ent per year den hours ($) (projected) (projected) (predicted) (projected) hr) (1998 $)

No Exp. Cert. Proc. & Rev ...... 30,200 0.5 15,100 26.91 406,341

Annual Subtotal ...... 19,992 ...... 537,985

Annual Totals ...... 56,369 ...... 2,151,305 Notes: 1 Source: U.S. EPA, Office of Wastewater Management. Economic Analysis for the Storm Water Phase II Rule. 2 The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was assumed that the annual number of respondents for the no exposure certification would be spread over the five year period the exclusion applies. 3 The number of respondents in each category represents only those respondents located within the 44 NPDES-authorized States and Terri- tories. The burden and cost estimates provided in this section are for the NPDES-authorized States in their role as the permitting authority for municipal designations and industrial no exposure. 4 The number of respondents for this activity, 15, represents the number of NPDES-authorized States and Territories that must develop des- ignation criteria and assess small MS4s located outside of an urbanized area for possible Phase II coverage divided by the three year ICR pe- riod.

Given the requirements of today’s In addition to the information regulatory action’’ as one that is likely regulation, EPA believes there will be collection, reporting, and record to result in a rule that may: no capital startup and no operation and keeping burden for the next three years, (1) have an annual effect on the maintenance costs associated with today’s rule contains information economy of $100 million or more or information collection requirements of collection requirements that will not adversely affect in a material way the the rule. begin until three years or more from the economy, a sector of the economy, The government burden associated effective date of today’s rule. These productivity, competition, jobs, the with today’s rule will impact State, information collection requirements environment, public health or safety, or Tribal, and Territorial governments were not included in the information State, local, or tribal governments or (NPDES-authorized governmental collection request approved by OMB. communities; entities) that have storm water program EPA will submit these burden estimates (2) create a serious inconsistency or authority, as well as the federal for OMB approval when it submits ICR otherwise interfere with an action taken government (i.e., EPA), where it is the 2040–0211 to OMB for renewal in three or planned by another agency; NPDES permitting authority. As of years. The rule burdens for regulated (3) materially alter the budgetary March 1999, 43 States and the Virgin small MS4s and small construction sites impact of entitlements, grants, user fees, Islands had NPDES authority. that will be included in the ICR renewal or loan programs or the rights and The annual burden imposed upon fall into three areas: application for an obligations of recipients thereof; or authorized governmental entities NPDES permit or submittal of waiver (4) raise novel legal or policy issues (delegated States and the Virgin Islands) information, record keeping of storm arising out of legal mandates, the and the federal government for the next water management activities, and President’s priorities, or the principles three years is estimated to be 19,992 submittal of reports to the permitting set forth in the Executive Order. hours ($537,985) and 4,087 hours authority. There will also be an Pursuant to the terms of Executive ($115,948) respectively, for a total of additional burden for the permitting Order 12866, it has been determined 24,079 hours ($653,933). This estimate authority to review this information. that this rule is a ‘‘significant regulatory is based on the average time that action’’. As such, this action was governments will expend to carry out An agency may not conduct or submitted to OMB for review. Changes the following activities: designate sponsor, and a person is not required to made in response to OMB suggestions or additional MS4s (332.8 hours) and respond to a collection of information recommendations will be documented process and review ‘‘no exposure’’ unless it displays a currently valid OMB in the public record. certificates from industrial dischargers control number. The OMB control C. Unfunded Mandates Reform Act (0.5 hour). numbers for EPA’s regulations are listed Under the existing rule, storm water in 40 CFR Part 9 and 48 CFR Chapter Title II of the Unfunded Mandates discharges from light industrial 15. EPA is amending the table in 40 CFR Reform Act of 1995 (UMRA), Public activities identified under Part 9 of currently approved ICR control Law 104–4, establishes requirements for § 122.26(b)(14)(xi) were exempted from numbers issued by OMB for various Federal agencies to assess the effects of the permit application requirements if regulations to list the first three years of their regulatory actions on State, local, they were not exposed to storm water. information requirements contained in and tribal governments and the private Today’s rule expands the applicability this final rule. sector. Under section 202 of the UMRA, of the ‘‘no exposure’’ exclusion to B. Executive Order 12866 EPA generally must prepare a written include all industrial activity regulated statement, including a cost-benefit under § 122.26(b)(14) (except category Under Executive Order 12866, [58 FR analysis, for proposed and final rules (x), construction). The ‘‘no exposure’’ 51,735 (October 4, 1993)] the Agency with ‘‘Federal mandates’’ that may provision is applied through the use of must determine whether the regulatory result in expenditures to State, local, a written certification process, thus action is ‘‘significant’’ and therefore and tribal governments, in the aggregate, representing a slight reporting burden subject to OMB review and the or to the private sector, of $100 million increase for ‘‘light’’ industries with ‘‘no requirements of the Executive Order. or more in any one year. Before exposure’. The Order defines ‘‘significant promulgating an EPA rule for which a

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Moreover, section 205 suffer. In section II.D.3 of the preamble, These comments helped to focus on allows EPA to adopt an alternative other EPA lists some of the programs that EPA pollution prevention, watershed-based than the least costly, most cost-effective anticipates may provide funds to help concerns and BMPs. They also led to or least burdensome alternative if the develop and, in limited circumstances, certain exemptions for facilities that do Administrator publishes with the final implement storm water management not pollute national waters. rule an explanation why that alternative programs. In early 1993, EPA, in conjunction was not adopted. In the EA, EPA reviewed the expected with the Rensselaerville Institute, held EPA has determined that today’s rule effect of today’s rule on the national public and expert meetings to assist in contains a Federal mandate that may economy. The Agency determined that developing and analyzing options for result in expenditures of $100 million or the rule will have minimal impacts on identifying unregulated storm water more in any one year for both State, the economy or employment. This is sources and possible controls. These local, and tribal governments, in the because the final rule regulates small meetings provided participants an aggregate, and the private sector. MS4s and construction sites under 5 additional opportunity to provide input Accordingly, EPA has prepared under acres, not the typical industrial plants or into the CWA section 402(p)(6) program section 202 of the UMRA a written other non-construction activities that development process. The final rule statement which is summarized below. could directly impact production and addresses several of the key concerns thus those sectors of the economy. identified in these groups, including 1. Summary of UMRA Section 202 Discussions with representatives provisions that provide flexibility to the Written Statement within the construction industry States to select sources to be controlled EPA promulgates today’s storm water indicate that construction costs will and types of permits to be issued, and regulation pursuant to the specific likely be passed on to buyers, thus not mandate of Clean Water Act section seriously affecting the housing industry flexibility to MS4s in selecting BMPs. 402(p)(6), as well as sections 301, 308, directly. Flexibility within the rule EPA also conducted outreach with 402, and 501. (33 U.S.C. sections allows MS4s to tailor the storm water representatives of small entities, 1342(p)(6), 1311, 1318, 1342, 1361.) program requirements to their needs including small government Section 402(p)(6) of the CWA requires and financial position, minimizing representatives, in conjunction with the that EPA designate sources to be impacts. For sedimentation and erosion convening of a Small Business regulated to protect water quality and controls on construction sites, the rule Advocacy Review Panel under SBREFA establish a comprehensive program to contemplates application of commonly which is discussed in section IV.E. of regulate those sources. used BMPs to reduce costs for the the preamble. In the Economic Analysis of the Final construction industry. Thus, the rule In addition, EPA established the Phase II Rule (EA), EPA describes the attempts to use existing practices to Urban Wet Weather Flows Advisory qualitative and monetized benefits prevent pollution, which should Committee under the Federal Advisory associated with today’s rule and then minimize impacts on States, Tribes, Committee Act (FACA). The Urban Wet compares the monetized benefits with municipalities and the construction Weather Flows Advisory Committee, in the estimated costs for the rule. EPA industry. turn established the Storm Water Phase developed detailed estimates of the Thus, EPA concludes that the effect of II Subcommittee. Consistent with costs and benefits of complying with the rule, if any, on the national economy FACA, the membership of the each of the incremental requirements would be minimal. The benefits of Committee and the Storm Water Phase imposed by the rule. These estimates, today’s rule more than offset any cost II Subcommittee was balanced among including descriptions of the impacts on the national economy. EPA’s various outside stakeholder methodology and assumptions used, are Consistent with the intergovernmental interests, including representatives from described in detail in the EA. The consultation provisions of section 204 of State governments, municipal Agency used two approaches, a national the UMRA and Executive Order 12875, governments (both elected officials and water quality model and national water ‘‘Enhancing the Intergovernmental appointed officials) and Tribal quality assessment, to estimate the Partnership,’’ EPA consulted with the governments, as well as industrial and potential benefits of the rule. Both governmental entities affected by this commercial sectors, agriculture, approaches show that the benefits are rule. environmental and public interest likely to exceed costs. Exhibit 3 in First, EPA provided States, Tribal and groups. section III of this preamble summarizes local governments with the opportunity In general, municipal and Tribal the costs and benefits associated with to comment on draft alternative government representatives supported the basic elements of today’s rule. approaches for the proposed rule the NPDES approach in today’s rule for There are additional benefits to storm through publishing a notice requesting the following reasons: It will be water control that cannot be quantified information and public comment in the uniformly applied on a nationwide or monetized. Thus, the current estimate Federal Register on September 9, 1992 basis; it provides flexibility to allow of monetized benefits may understate (57 FR 41344). This notice presented a incorporation of State and local the true value of storm water controls full range of regulatory alternatives. At programs; it resolves the problem of because it omits many ways by which that time, EPA received more than 130 donut holes that cause water quality society is likely to benefit from reduced comments, including approximately 43 impacts in urbanized areas; and it storm water pollution, such as improved percent from municipalities and 24 allows co-permitting of small regulated

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MS4s with those regulated under the 2. Selection of the Least Costly, Most proposal involved higher regulatory existing storm water program. Cost-Effective or Least Burdensome costs and, therefore, were not selected. In contrast, State representatives Alternative That Achieves the These four options and their estimated sought alternative approaches for State Objectives of the Statute costs are as follows: (1) An option based on the August 7, implementation of the storm water Today’s rule evolved over time and 1995 direct final rule was estimated to incorporated aspects of alternatives that program for Phase II sources. State cost between $2.2 billion and $78.9 responded to concerns presented by the representatives asserted that a non- billion per year. NPDES alternative approach best various stakeholders. A primary (2) A ‘‘Plan B’’ option was estimated facilitated watershed management and characteristic of today’s rule is the to cost between $0.6 billion and $3.2 avoided duplication and overlapping flexibility it offers both the permitting billion per year. regulations. These representatives authority and the regulated sources (3) An option based on the September pointed out that there are a variety of (small MS4s and small construction 30, 1996 draft proposed rule was State programs—not based on the sites), by the use of general permits, estimated to cost between $0.2 billion CWA—implementing effective storm implementation of BMPs suited to and $3.7 billion per year. specific locations, and allowing MS4s to water controls, and that EPA should (4) An option based on the February develop their own program goals. provide incentives for their 13, 1997 draft proposed rule, was In the administrative record estimated to cost between $0.2 billion implementation and improvement in supporting the proposed rule, EPA performance. EPA continues to believe and $3.5 billion. estimated ranges of costs associated There are three reasons why the costs that an NPDES approach is the best with six different options, including a for these four options exceeded the approach in order to adequately protect no action option, the proposed option, estimated cost range for the proposed water quality. However, EPA has and four other options that considered rule. The first two options regulated worked with States on an alternative various combinations of the following: substantially more municipal approach that provides flexibility Covering all the unregulated governments. The first, third, and fourth within the NPDES framework. The final construction sites below 5 acres, all options required industrial facilities to rule allows States with a watershed small MS4s, certain industrial and apply for permits. Finally, the first three permitting approach to phase in permit commercial activities, and all point options applied permit requirements to coverage for MS4s in jurisdictions with sources. EPA developed detailed cost construction sites below 1 acre. a population less than 10,000 and estimates for the incremental Consequently, these options would be provides two waivers from coverage for requirements imposed under the final more costly than today’s rule even with small MS4s. This issue is discussed in regulation, and for each of the the revised analysis methods used to section II.C of the preamble, Program alternatives, and applied these estimates estimate costs. Framework: NPDES Approach. to the remaining unregulated point sources of storm water. The Agency 3. Effects on Small Governments Some municipal governments compared the estimated annual range of Before EPA establishes any regulatory objected that the rule’s minimum costs imposed under today’s rule and requirements that may significantly or measures for small MS4s violate the other major options considered. The uniquely affect small governments, Tenth Amendment insofar as they range of values for each option included including tribal governments, it must require the operators of MS4s to regulate the costs for compliance, including have developed under section 203 of the third parties according to the paperwork requirements for the UMRA a small government agency plan. ‘‘minimum measures’’ for municipal operators of small construction sites, The plan must provide for notifying storm water management programs. EPA industrial facilities, and MS4s and potentially affected small governments, disagrees that today’s rule is administrative costs for State and enabling officials of affected small inconsistent with Tenth Amendment Federal NPDES permitting authorities. governments to have meaningful and principles. Permits issued under today’s Today’s rule reflects the least costly timely input in the development of EPA rule will not compel political option that achieves the objectives of regulatory proposals with significant subdivisions of States to regulate in the statute, thus meeting the Federal intergovernmental mandates, their sovereign capacities, but rather to requirements of section 205. EPA did and informing, educating, and advising effectively control discharges out of not consider ‘‘no regulation’’ to be an small governments on compliance with their storm sewer systems in their ‘‘option’’ because it would not achieve the regulatory requirements. EPA has owner/operator capacities. For MS4s the objectives of CWA section 402(p)(6). determined that this rule contains no that do not accept this ‘‘default’’ A portion of currently unregulated point regulatory requirements that might minimum measures-based approach (to sources of storm water need to reduce significantly or uniquely affect small control discharges out of the storm pollutants to protect water quality. governments. Although today’s rule sewer system by exercising local powers Today’s rule is estimated to range in expands the NPDES program (with cost from $847.6 million to $981.3 modifications) to certain MS4s serving to control discharges into the storm million annually, although the cost populations below 100,000 and sewer system), today’s rule allows for estimate for the proposed rule was although many MS4s are owned by alternative permits through individual reported as a range of $138 to $869 small governments, EPA does not permit applications. EPA made million annually. That range reflected a believe today’s rule significantly or revisions to the rule to allow regulated unit cost range for the municipal uniquely affects small governments. As small MS4s to opt out of the minimum minimum measures and a cost range per explained in section IV.E. of the measures approach and instead apply construction site for soil erosion control. preamble, EPA today certifies that the for an individual permit. This issue is EPA has since revised its cost analysis rule will not have a significant impact discussed in section II.H.3.c.iii of the to allow it to report the current estimate, on small governmental jurisdictions. In preamble, Alternative Permit Option/ which is toward the high end of the addition, the rule will not have a unique Tenth Amendment. original cost range. The four other impact on small governments because regulatory options considered at the rule will affect small governments in

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Thus, today’s rule is not implementing the Phase II program, rule contains a Federal mandate that subject to the requirements of section EPA is committed to the following: (1) may result in the expenditure by State, 203 of UMRA. developing a tool box of implementation local and tribal governments, in the Notwithstanding this finding, in strategies; (2) providing written aggregate, of $100 million or more in developing today’s rule, EPA provided technical assistance, including guidance any one year. Accordingly, the rule may notice of the requirements to potentially on developing BMPs and measurable have substantial direct effects on the affected small governments; enabled goals; and (3) compiling a States, on the relationship between the officials of affected small governments comprehensive evaluation of the NPDES national government and the States, or to provide meaningful and timely input municipal storm water Phase II program on the distribution of power and in the development of regulatory over the next 13 years. responsibilities among the various proposals; and informed, educated and D. Executive Order 13132 levels of government, as specified in advised small governments on Executive Order 13132. Moreover, the compliance with the requirements. Executive Order 13132, entitled rule will impose substantial direct ‘‘Federalism’’ (64 FR 43255, August 10, Concerning notice, EPA provided compliance costs on State or local 1999), requires EPA to develop an States, local, and Tribal governments governments. Accordingly, EPA accountable process to ensure with the opportunity to comment on provides the following FSIS under ‘‘meaningful and timely input by State alternative approaches for an early draft section 6(b) of Executive Order 13132. and local officials in the development of of the proposed rule by publishing a regulatory policies that have federalism 1. Description of the Extent of the notice requesting information and implications.’’ ‘‘Policies that have Agency’s Prior Consultation with State public comment in the Federal Register federalism implications’’ is defined in and Local Governments on September 9, 1992 (57 FR 41344). the Executive Order to include Although this rule was proposed long This notice presented a full range of regulations that have ‘‘substantial direct before the November 2, 1999 effective regulatory alternatives. At that time, effects on the States, on the relationship date of Executive Order 13132, EPA EPA received more than 130 comments, between the national government and consulted extensively with affected including approximately 43 percent the States, or on the distribution of State and local governments pursuant to from municipalities and 24 percent from power and responsibilities among the the intergovernmental consultation State or Federal agencies. various levels of government.’’ Under provisions of Executive Order 12875, The Agency also provided, through Executive Order 13132, EPA may not ‘‘Enhancing the Intergovernmental the SBREFA panel process and the issue a regulation that has federalism Partnership’’ (now revoked by Executive FACA process, the opportunity for implications, that imposes substantial Order 13132) and section 204 of UMRA. elected officials of small governments direct compliance costs, and that is not First, EPA provided State and local (and their representatives) to required by statute, unless the Federal governments the opportunity to meaningfully participate in the government provides the funds comment on draft alternative development of the rule. Through such necessary to pay the direct compliance approaches for the proposed rule participation and exchange, EPA not costs incurred by State and local through publishing a notice requesting only notified potentially affected small governments, or EPA consults with information and public comment in the governments of requirements of the State and local officials early in the Federal Register on September 9, 1992 developing rule, but also allowed process of developing the proposed (57 FR 41344). This notice presented a officials of affected small governments regulation. EPA also may not issue a full range of regulatory alternatives. At to have meaningful and timely input regulation that has federalism that time, EPA received more than 130 into the development of regulatory implications and that preempts State comments, including approximately 43 proposals. law unless the Agency consults with percent from municipalities and 24 In addition to involving State and local officials early in the percent from State or Federal agencies. municipalities in the development of process of developing the proposed These comments were the genesis of the rule, EPA also continues to inform, regulation. many of the provisions in the today’s educate, and advise small governments If EPA complies by consulting, rule, including reliance on the NPDES on compliance with the requirements of Executive Order 13132 requires EPA to program framework (including general today’s rule. For example, EPA provide to the Office of Management permits), providing State and local supported 10 workshops, presented by and Budget (OMB), in a separately governments flexibility in selecting the American Public Works Association identified section of the preamble to the additional sources requiring regulation, from September 1998 through May rule, a federalism summary impact and focusing on high priority polluters. 1999, designed to educate local statement (FSIS). The FSIS must include These comments helped to focus on governments on the implementation of a description of the extent of EPA’s pollution prevention, watershed-based the rule. The workshop curriculum prior consultation with State and local concerns and BMPs. They also led to included information on a variety of key officials, a summary of the nature of certain exemptions for facilities that do issues such as anticipated regulatory their concerns and the agency’s position not pollute national waters. requirements, agency reporting, best supporting the need to issue the In early 1993, EPA, in conjunction management practices, construction site regulation, and a statement of the extent with the Rensselaerville Institute, held controls, post construction management to which the concerns of State and local public and expert meetings to assist in for new and redeveloped sites, public officials have been met. For final rules developing and analyzing options for education and public involvement subject to Executive Order 13132, EPA identifying unregulated storm water strategies, detection and control of illicit also must submit to OMB a statement sources and possible controls. These discharges, and good housekeeping from the agency’s Federalism Official meetings provided participants an practices. Moreover, EPA has prepared certifying that EPA has fulfilled the additional opportunity to provide input a series of fact sheets, available on the Executive Order’s requirements. into the CWA section 402(p)(6) program

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68800 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations development process. The final rule approach that provides flexibility The draft final rule was transmitted to addresses several of the key concerns within the NPDES framework. The final OMB on July 6, 1999. Because identified in these groups, including rule allows States with a watershed transmittal occurred before the provisions that provide flexibility to the permitting approach to phase in permit November 2, 1999 effective date of States to select sources to be controlled coverage for MS4s in jurisdictions with Executive Order 13132, certification and types of permits to be issued, and a population less than 10,000 and under section 8 of the Executive Order flexibility to MS4s in selecting BMPs. provides two waivers from coverage for is not required. EPA also conducted outreach with small MS4s. This issue is discussed in representatives of small entities, E. Regulatory Flexibility Act (RFA), as section II.C of the preamble, Program amended by the Small Business including small governments, in Framework: NPDES Approach. conjunction with the convening of a Regulatory Enforcement Fairness Act of Some municipal governments 1996 (SBREFA), 5 U.S.C. 601 et seq. Small Business Advocacy Review Panel objected that the rule’s minimum under SBREFA which is discussed in measures for small MS4s violate the The RFA generally requires an Agency to prepare a regulatory section III.F. of the preamble. Tenth Amendment insofar as they flexibility analysis of any rule subject to In addition, EPA established the require the operators of MS4s to regulate notice and comment rulemaking Urban Wet Weather Flows Advisory third parties according to the requirements under the Administrative Committee (FACA), which in turn ‘‘minimum measures’’ for municipal established the Storm Water Phase II Procedure Act or any other statute storm water management programs. EPA Subcommittee. Consistent with the unless the agency certifies that the rule disagrees that today’s rule is Federal Advisory Committee Act, the will not have a significant economic inconsistent with Tenth Amendment membership of the Committee and the impact on a substantial number of small principles. Permits issued under today’s Storm Water Phase II Subcommittee was entities. Small entities include small rule will not compel political balanced among EPA’s various outside businesses, small organizations, and subdivisions of States to regulate in stakeholder interests, including small governmental jurisdictions. their sovereign capacities, but rather to representatives from State governments, For purposes of assessing the impact effectively control discharges out of municipal governments (both elected of today’s rule on small entities, small their storm sewer systems in their officials and appointed officials) and entity is defined as: (1) a building Tribal governments, as well as owner/operator capacities. For MS4s contractor (SIC 15) with up to $17.0 industrial and commercial sectors, that do not accept this ‘‘default’’ million in annual revenue; (2) a small agriculture, environmental and public minimum measures-based approach (to governmental jurisdiction that is a interest groups. control discharges out of the storm government of a city, county, town, sewer system by exercising local powers school district, or special district with a 2. Summary of Nature of State and Local to control discharges into the storm population of less than 50,000; and (3) Government Concerns, and Statement of sewer system), today’s rule allows for a small organization that is any not-for- the Extent to Which Those Concerns alternative permits through individual profit enterprise which is independently Have Been Met permit applications. EPA made owned and operated and is not In general, municipal government revisions to the rule to allow regulated dominant in its field. representatives supported the NPDES small MS4s to opt out of the minimum After considering the economic approach in today’s rule for the measures approach and instead apply impacts of today’s final rule on small following reasons: it will be uniformly for an individual permit. This issue is entities, I certify that this action will not applied on a nationwide basis; it discussed in section II.H.3.c.iii of the have a significant economic impact on provides flexibility to allow preamble, Alternative Permit Option/ a substantial number of small entities. incorporation of State and local Tenth Amendment. Although this final rule will not have programs; it resolves the problem of 3. Summary of the Agency’s Position a significant economic impact on a donut holes that cause water quality Supporting the Need To Issue the substantial number of small entities, impacts in urbanized areas; and it Regulation EPA nonetheless has tried to reduce the allows co-permitting of small regulated impact of this rule on small entities. MS4s with those regulated under the As discussed more fully in section I.B. For purposes of evaluating the existing storm water program. above, today’s rule is needed because economic impact of this rule on small In contrast, State representatives uncontrolled storm water discharges governmental jurisdictions, EPA sought alternative approaches for State from areas of urban development and compared annual compliance costs with implementation of the storm water construction activity have been shown annual government revenues obtained program for Phase II sources. State to have negative impacts on receiving from the 1992 Census of Governments, representatives asserted that a non- waters by changing the physical, using state-specific estimates of annual NPDES alternative approach best biological, and chemical composition of revenue per capita for municipalities in facilitated watershed management and the water, resulting in an unhealthy three population size categories (fewer avoided duplication and overlapping environment for aquatic organisms, than 10,000, 10,000–25,000, and regulations. These representatives wildlife, and people. As discussed in 25,000–50,000). pointed out that there are a variety of section II.C., the NPDES approach in In order to estimate the annual State programs—not based on the today’s rule is needed to ensure uniform compliance cost for small governmental CWA—implementing effective storm application on a nationwide basis, to jurisdictions, EPA used the mean water controls, and that EPA should provide flexibility to allow variable municipal cost of $8.93 per provide incentives for their incorporation of State and local household as calculated in a 1998 study implementation and improvement in programs, to resolve the problem of of 121 municipalities conducted by the performance. EPA continues to believe donut holes that cause water quality national Association of Flood and that an NPDES approach is the best impacts in urbanized areas, and to allow Stormwater Management Agencies approach in order to adequately protect co-permitting of small regulated MS4s (NAFSMA). In addition, EPA used the water quality. However, EPA has with those regulated under the existing estimated fixed administrative costs of worked with States on an alternative storm water program. $1,545 per municipality for reporting,

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If the small applicable to small entities; (3) In evaluating the economic impact of building contractors covered by the rule identification of other Federal rules that this rule on small governmental are able to pass on the costs of may duplicate, overlap, or conflict with jurisdictions, EPA determined that compliance, either completely or the proposal to the final rule; and (4) compliance costs represent more than 1 partially, to their purchasers, then the regulatory alternatives that would percent of estimated revenues for only rule’s impact on these small business minimize any significant economic 10 percent of small governments and entities is significantly reduced. The impact of the rule on small entities more than 3 percent of the revenue for market analysis shows that demand for while accomplishing the stated 0.7 percent of these entities. In both homes is not overly sensitive to small objectives of the CWA section 402(p)(6). absolute and relative terms, EPA does changes in price, therefore builders On August 7, 1997, the Panel not consider this a significant economic should be able to pass on at least a provided a Final Report (hereinafter, impact on a substantial number of small significant fraction of the compliance ‘‘Report’’) to the EPA Administrator. A entities. costs to buyers. copy of the Report is included in the EPA normally uses the ‘‘sales test’’ for EPA also assessed the effect of the docket for the rule. The Panel determining the economic impact on building contractors’ costs on average acknowledged and commended EPA’s small businesses. Under a sales test, monthly mortgage rates and on the efforts to work with stakeholders, annual compliance costs are compared demand for new homes. Based on that including small entities, through the with the small business’s total annual screening analysis, EPA concludes that FACA process. The SBREFA Panel sales. However, the direct application of the costs to building contractors, and stated that, because of EPA’s extensive the sales test is not suitable in this case, the potential changes in housing prices outreach and responsiveness in because of the uncertainty associated and monthly mortgage payments for addressing stakeholder concerns, with estimating the number of units an single-family home buyers, are not commenters during the SBREFA process ‘‘average’’ developer/contractor expected to have a significant impact on raised fewer concerns than might develops or builds in a typical year. For the market for single-family houses. In otherwise have been expected. Based on this rule, EPA has approximated the both absolute and relative terms, EPA the advice and recommendations of the sales test by estimating compliance does not consider this a significant Panel, today’s rule includes a number of costs for three sizes of construction sites economic impact on a substantial provisions designed to minimize any and comparing them with a number of small entities. significant impact on small entities. (See representative sale price for three EPA also certified this rule at Appendix 5). building categories. Although EPA’s proposal. Even though the Agency was analysis is not exactly a ‘‘sales test,’’ it not required to, we convened a Small F. National Technology Transfer And is similar to the sales test, producing Business Advocacy Review Panel Advancement Act comparable results. (‘‘Panel’’) in June 1997. A number of Section 12(d) of the National For small building contractors, EPA small entity representatives had already Technology Transfer and Advancement estimated administrative compliance been actively involved with EPA Act of 1995 (‘‘NTTAA’’), Public Law costs of $870 per site for applying for through the FACA process, and were, 104–113, section 12(d) (15 U.S.C. 272 coverage, reporting, record keeping, therefore, broadly knowledgeable about note) directs EPA to use voluntary monitoring and preparing a storm water the development of the proposed and consensus standards in its regulatory pollution prevention plan. EPA final rules. Prior to convening the Panel, activities unless to do so would be estimated compliance costs for EPA consulted with the Small Business inconsistent with applicable law or installing soil and erosion controls as Administration to identify a group of otherwise impractical. Voluntary ranging from $1,206 to $8,709 per site. small entity representatives to advise consensus standards are technical EPA compliance cost estimates are the Panel. The Agency distributed a standards (e.g., materials specifications, based on 27 theoretical model briefing package describing its test methods, sampling procedures, and construction sites designed to mimic the preliminary analysis under the RFA to business practices) that are developed or mostly likely used best management the small entity representatives (as well adopted by voluntary consensus practices around the country. as to representatives from OMB and standard bodies. The NTTAA directs In evaluating the economic impact on SBA) and conducted two telephone EPA to provide Congress, through OMB, small building contractors, EPA divided conference calls and an all-day meeting explanations when the Agency decides the revised compliance costs per at EPA Headquarters in May of 1997 not to use available and applicable construction start by the appropriate with small entity representatives. With voluntary consensus standards. homes-to-site ratio for each of the three this preliminary work complete, in June This action does not mandate the use sizes of construction sites. The average 1997, EPA formally convened the of any particular technical standards, compliance cost per home ranges from SBREFA Panel, comprising although in designing appropriate BMPs approximately $450 to $650. EPA representatives from OMB, SBA, EPA’s regulated small MS4s and small concluded that compliance costs are Office of Water and EPA’s Small construction sites are encouraged to use roughly 0.22 to 0.43 percent of both the Business Advocacy Chair. The Panel any voluntary consensus standards that mean, $181,300, and median, $151,000, received written comments from small may be applicable and appropriate. sale price of a home. entity representatives based on their Because no specific technical standards The absence of data to specifically involvement in the earlier meetings, and are included in the rule, section 12(d) of assess annual compliance costs for invited additional comments. the NTTAA is not applicable. building contractors as a percentage of Consistent with requirements of the annual sales (i.e., a very direct estimate RFA, the Panel evaluated the assembled G. Executive Order 13045 of the impact on potentially affected materials and small-entity comments on Executive Order 13045: ‘‘Protection of small businesses) led EPA to perform issues related to: (1) a description and Children from Environmental Health additional market analysis to examine the number of small entities that would Risks and Safety Risks’’ (62 FR 19885, the ability of potentially affected firms be regulated; (2) a description of the April 23, 1997) applies to any rule that: to pass along regulatory costs to buyers projected record keeping, reporting and (1) Is determined to be ‘‘economically

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If Management and Budget, in a separately House of Representatives, and the the regulatory action meets both criteria, identified section of the preamble to the Comptroller General of the United the Agency must evaluate the rule, a description of the extent of EPA’s States prior to publication of the rule in environmental health or safety effects of prior consultation with representatives the Federal Register. A major rule the planned rule on children, and of affected Tribal governments, a cannot take effect until 60 days after it explain why the planned regulation is summary of the nature of their concerns, is published in the Federal Register. preferable to other potentially effective and a statement supporting the need to This rule is a ‘‘major rule’’ as defined by and reasonably feasible alternatives issue the regulation. In addition, 5 U.S.C. 804(2). This rule will be considered by the Agency. Executive Order 13084 requires EPA to effective on February 7, 2000. This final rule is not subject to E.O. develop an effective process permitting 13045 because it does not concern an elected officials and other List of Subjects environmental health or safety risk that representatives of Indian Tribal 40 CFR Part 9 may have a disproportionate effect on governments ‘‘to provide meaningful children. The rule expands the scope of and timely input in the development of Environmental protection, Reporting the existing NPDES permitting program regulatory policies on matters that and recordkeeping requirements. to require small municipalities and significantly or uniquely affect their 40 CFR Part 122 small construction sites to regulate their communities.’’ storm water discharges. The rule does Today’s rule does not significantly or Administrative practice and not itself, however, establish standards uniquely affect the communities of procedure, Confidential business or criteria that would be included in Indian Tribal governments. Even though information, Environmental protection, permits for those sources. Such the Agency is not required to address Hazardous substances, Incorporation by standards or criteria will be developed Tribes under the Regulatory Flexibility reference, Reporting and recordkeeping through other actions, for example, in Act, EPA used the same revenue test requirements, Sewage disposal, Waste the establishment of water quality that was used for municipalities to treatment and disposal, Water pollution standards or subsequently in the assess the impact of the rule on control. issuance of permits themselves. As communities of Tribal governments and 40 CFR Part 123 such, today’s action does not concern an determine that they will not be environmental health or safety risk that significantly affected. In addition, the Administrative practice and may have a disproportionate effect on rule will not have a unique impact on procedure, Confidential business children. To the extent it does address the communities of Tribal governments information, Hazardous materials, a risk that may have a disproportionate because small municipal governments Indians—lands, Intergovernmental effect on children, expanding the scope are also covered by this rule and larger relations, Penalties, Reporting and of the permitting program will have a municipal governments are already recordkeeping requirements, Sewage corresponding disproportionate benefit covered by the existing storm water disposal, Waste treatment and disposal, to children to protect them from such rules. Accordingly, the requirements of Water pollution control, Penalties. risk. section 3(b) of Executive Order 13084 40 CFR Part 124 do not apply to this rule. H. Executive Order 13084 Administrative practice and Under Executive Order 13084, EPA I. Congressional Review Act procedure, Air pollution control, may not issue a regulation that is not The Congressional Review Act, 5 Hazardous waste, Indians—lands, required by statute, that significantly or U.S.C. section 801 et seq., as added by Reporting and recordkeeping uniquely affects the communities of the Small Business Regulatory requirements, Water pollution control, Indian tribal governments, and that Enforcement Fairness Act of 1996, Water supply. imposes substantial direct compliance generally provides that before a rule Dated: October 29, 1999. costs on those communities, unless the may take effect, the agency Carol M. Browner, Federal government provides the funds promulgating the rule must submit a Administrator. necessary to pay the direct compliance rule report, which includes a copy of costs incurred by the Tribal the rule, to each House of the Congress Appendices to the Preamble

APPENDIX 1 TO PREAMBLEÐFEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED FULLY OR PARTIALLY IN BUREAU OF THE CENSUS URBANIZED AREAS [Based on 1990 Census data]

State American Indian Area Urbanized Area

AZ ...... Pascua Yacqui Reservation (pt.): Pascua Yacqui Tribe of Arizona ...... Tucson, AZ (Phase I). AZ ...... Salt River Reservation (pt.): Salt River Pima-Maricopa Indian Community of the Salt Phoenix, AZ (Phase I). River Reservation, California. AZ ...... San Xavier Reservation (pt.): Tohono O'odham Nation of Arizona (formerly known as Tucson, AZ (Phase I). the Papago Tribe of the Sells, Gila Bend & San Xavier Reservation). CA ...... Augustine Reservation: Augustine Band of Cahuilla Mission of Indians of the Augustine Indio-Coachella, CA (Phase I). Reservation, CA. CA ...... Cabazon Reservation: Cabazon Band of Cahuilla Mission Indians of the Cabazon Res- Indio-Coachella, CA (Phase I). ervation, CA.

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APPENDIX 1 TO PREAMBLEÐFEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED FULLY OR PARTIALLY IN BUREAU OF THE CENSUS URBANIZED AREASÐContinued [Based on 1990 Census data]

State American Indian Area Urbanized Area

CA ...... Fort Yuma (Quechan) (pt.): Quechan Tribe of the Fort Yuma Indian Reservation, Cali- Yuma, AZ±CA. fornia & Arizona. CA ...... Redding Rancheria: Redding Rancheria of California ...... Redding, CA. FL ...... Hollywood Reservation: Seminole Tribe ...... Fort Lauderdale, FL (Phase I). FL ...... Seminole Trust Lands: Seminole Tribe of Florida, Dania, Big Cypress & Brighton Res- Fort Lauderdale, FL (Phase I). ervations. ID ...... Fort Hall Reservation and Trust Lands: Shosone-Bannock Tribes of the Fort Hall Res- Pocatello, ID. ervation of Idaho. ME ...... Penobscot Reservation and Trust Lands (pt.): Penobscot Tribe of Maine ...... Bangor, ME. MN ...... Shakopee Community: Shakopee Mdewakanton Sioux Community of Minnesota (Prior Minneapolis-St. Paul, MN (Phase I). Lake). NM ...... Sandia Pueblo (pt.): Pueblo of Sandia, New Mexico ...... Albuquerque, NM (Phase I). NV ...... Las Vegas Colony: Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Las Vegas, NV (Phase I). Nevada. NV ...... Reno-Sparks Colony: Reno-Sparks Indian Colony, Nevada ...... Reno, NV (Phase I). OK ...... Osage Reservation (pt.): Osage Nation of Oklahoma ...... Tulsa, OK (Phase I). OK ...... Absentee Shawnee-Citizens Band of Potawatomi TJSA (pt.): Absentee-Shawnee Tribe Oklahoma City, OK (Phase I). of Indians of Oklahoma; Citizen Potawatomi Nation, Oklahoma. OK ...... Cherokee TJSA 9 (pt.): Cherokee Nation of Oklahoma; United Keetoowah Band of Ft. Smith, AR±OK; Tulsa, OK (Phase I). Cherokee Indians of Oklahoma. OK ...... Cheyenne-Arapaho TJSA (pt.): Cheyenne-Arapaho Tribes of Oklahoma ...... Oklahoma City, OK (Phase I). OK ...... Choctaw TJSA (pt.): Choctaw Nation of Oklahoma ...... Ft. Smith, AR±OK (Phase I). OK ...... Creek TJSA (pt.): Alabama-Quassarte Tribal Town of the Creek Nation of Oklahoma; Tulsa, OK (Phase I). Kialegee Tribal Town of the Creek Indian Nation of Oklahoma; Muscogee (Creek) Na- tion of Oklahoma; Thlopthlocco Tribal Town of the Creek Nation of Oklahoma. OK ...... Kiowa-Comanche-Apache-Ft. Sill Apache: Apache Tribe of Oklahoma; Comanche In- Lawton, OK. dian Tribe, Oklahoma; Fort Sill Apache Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma. TX ...... Ysleta del Sur Reservation: Ysleta Del Sur Pueblo of Texas ...... El Paso, TX±NM (Phase I). WA ...... Muckleshoot Reservation and Trust Lands (pt.): Muckleshoot Indian Tribe of the Seattle, WA (Phase I). Muckleshoot Reservation. WA ...... Puyallup Reservation and Trust Lands (pt.): Puyallup Tribe of the Puyallup Reservation, Tacoma, WA (Phase I). WA. WA ...... Yakima Reservation (pt.): Confederated Tribes and Bands of the Yakama Indian Nation Yakima, WA. of the Yakama Reservation, WA. WI ...... Oneida (West) (pt.): Oneida Tribe of Wisconsin ...... Green Bay, WI.

Please Note Register: Nov. 13, 1996, Vol. 66, No. 220, pgs. urban areas would not automatically have ‘‘(pt.)’’ indicates that the American Indian 58211–58216] been covered under Phase I, however. ‘‘TJSAs’’ are Tribal Jurisdiction Statistical Area (AIA) listed is only partially located Sources Areas in Oklahoma that are defined in within the referenced urbanized area. conjunction with the federally-recognized Michael Ratcliffe, Geographic Concepts The first line under ‘‘American Indian tribes in Oklahoma who have definite land Division, Bureau of the Census, U.S. Area’’ is the name of the federally-recognized areas under their jurisdiction, but do not Department of Commerce. reservation/colony/rancheria or trust land as have reservation status. 1990 Census of Population and Housing, it appears in the Bureau of the Census data. ‘‘(Phase I)’’ indicates that the referenced Summary Population and Housing After this first line, the names of the tribes urbanized area includes a medium or large Characteristics, United States. Tables 9 & 10. included in the AIA are listed as they appear MS4 currently regulated under the existing [1990 CPH–1–1]. Bureau of the Census, U.S. in the Bureau of Indian Affairs’ list of NPDES storm water program (i.e., Phase I). Department of Commerce. Federally Recognized Indian Tribes. [Federal Any Tribally operated MS4 within these such BILLING CODE 6560±50±P

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BILLING CODE 6560±50±C

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Appendix 3 to the Preamble— Yuba City Kailua Yuma Urbanized Areas of the United States Idaho and Puerto Rico Colorado Boise City (Source: 1990 Census of Population and Boulder Idaho Falls Housing, U.S. Bureau of the Census— Colorado Springs Pocatello This list is subject to change with the Denver Fort Collins Illinois Decennial Census) Grand Junction Alton Alabama Greeley Aurora Longmont Beloit, WI–IL Anniston Pueblo Bloomington-Normal Auburn-Opelika Champaign-Urbana Connecticut Birmingham Chicago, IL-Northwestern IN Columbus, GA–AL Bridgeport-Milford Crystal Lake Decatur Bristol Davenport-Rock Island-Moline, IA–IL Dothan Danbury, CT–NY Decatur Florence Hartford-Middletown Dubuque Gadsden New Britain Elgin Huntsville New Haven-Meriden Joliet Mobile New London-Norwich Kankakee Montgomery Norwalk Peoria Tuscaloosa Springfield, MA–CT Rockford Stamford, CT–NY Alaska Round Lake Beach-McHenry, IL–WI Waterbury St. Louis, MO–IL Anchorage Worcester, MA–CT Springfield Arizona Delaware Indiana Phoenix Dover Anderson Tucson Wilmington, DE–NJ–MD–PA Bloomington Yuma, AZ–CA District of Columbia Chicago, IL-Northwestern IN Arkansas Elkhart-Goshen Washington, DC–MD–VA Evansville, IN–KY Fayetteville-Springdale Florida Fort Wayne Fort Smith, AR–OK Indianapolis Daytona Beach Little Rock-North Little Rock Kokomo Deltona Memphis, TN–AR–MS Lafayette-West Lafayette Fort Lauderdale-Hollywood-Pompano Beach Pine Bluff Louisville, KY–IN Texarkana, AR–TX Fort Myers-Cape Coral Fort Pierce Muncie California Fort Walton Beach South Bend-Mishawaka, IN–MI Terre Haute Antioch-Pittsburgh Gainesville Bakersfield Jacksonville Iowa Kissimmee Chico Cedar Rapids Lakeland Davis Davenport-Rock Island-Moline, IA–IL Melbourne-Palm Bay Fairfield Des Moines Miami-Hialeah Fresno Dubuque, IA–IL–WI Hemet-San Jacinto Naples Ocala Iowa City Hesperia-Apple Valley-Victorville Omaha, NE–IA Indio-Coachella Orlando Panama City Sioux City, IA–NE–SD Lancaster-Palmdale Waterloo-Cedar Falls Lodi Pensacola Lompoc Punta Gorda Kansas Los Angeles Sarasota-Bradenton Spring Hill Kansas City, MO–KS Merced Lawrence Modesto Stuart Tallahassee St. Joseph, MO–KS Napa Tampa-St. Petersburg-Clearwater Topeka Oxnard-Ventura Titusville Wichita Palm Springs Vero Beach Redding Kentucky West Palm Beach-Boca Raton-Delray Beach Riverside-San Bernardino Winter Haven Cincinnati, OH–KY Sacramento Clarksville, TN–KY Salinas Georgia Evansville, IN–KY San Diego Albany Huntington-Ashland, WV–KY–OH San Francisco-Oakland Athens Lexington-Fayette San Jose Atlanta Louisville, KY–IN San Luis Obispo Augusta Owensboro Santa Barbara Brunswick Louisiana Santa Cruz Chattanooga Santa Maria Columbus Alexandria Santa Rosa Macon Baton Rouge Seaside-Monterey Rome Houma Simi Valley Savannah Lafayette Stockton Warner Robins Lake Charles Vacaville Monroe Visalia Hawaii New Orleans Watsonville Honolulu Shreveport

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Slidell Missoula Cleveland Columbus Maine Nebraska Dayton Bangor Lincoln Hamilton Lewiston-Auburn Omaha, NE–IA Huntington-Ashland, WV–KY–OH Portland Sioux City, IA–NE–SD Lima Portsmouth-Dover-Rochester, NH–ME Lorain-Elyria Nevada Mansfield Maryland Las Vegas Middletown Annapolis Reno Newark Baltimore New Hampshire Parkersburg, WV–OH Cumberland Sharon, PA–OH Frederick Lawrence-Haverhill, MA–NH Springfield Hagerstown, MD–PA–WV Lowell, MA–NH Steubenville-Weirton, OH–WV–PA Washington, DC–MD–VA Manchester Toledo, OH–MI Wilmington, DE–NJ–MD–PA Nashua Wheeling, WV–OH Portsmouth-Dover-Rochester, NH–ME Massachusetts Youngstown-Warren New Jersey Boston Oklahoma Brockton Allentown-Bethlehem-Easton, PA–NJ Fort Smith, AR–OK Fall River, MA–RI Atlantic City Lawton Fitchburg-Leominster New York, NY-Northeastern NJ Oklahoma City Hyannis Philadelphia, PA–NJ Tulsa Lawrence-Haverhill, MA–NH Trenton, NJ–PA Lowell, MA–NH Vineland-Millville Oregon New Bedford Wilmington, DE–NJ–MD–PA Eugene-Springfield Pittsfield New Mexico Longview Providence-Pawtucket, RI–MA Medford Springfield, MA–CT Albuquerque Portland-Vancouver, OR–WA Taunton El Paso Salem Worcester, MA–CT Las Cruces Santa Fe Pennsylvania Michigan Allentown-Bethlehem-Easton, PA–NJ New York Ann Arbor Altoona Battle Creek Albany-Schenectady-Troy Erie Bay City Binghamton Hagerstown, MD–PA–WV Benton Harbor Buffalo-Niagara Falls Harrisburg Detroit Danbury, CT–NY Johnstown Flint Elmira Lancaster Grand Rapids Glens Falls Monessen Holland Ithaca Philadelphia, PA–NJ Jackson Newburgh Pittsburgh Kalamazoo New York, NY–Northeastern NJ Pottstown Lansing-East Lansing Poughkeepsie Reading Muskegon Rochester Scranton-Wilkes-Barre Port Huron Stamford, CT–NY Sharon, PA–OH Saginaw Syracuse State College South Bend-Mishawaka, IN–MI Utica-Rome Steubenville-Weirton, OH–WV–PA Trenton, NJ–PA Toledo, OH–MI North Carolina Williamsport Minnesota Asheville Wilmington, DE–NJ–MD–PA Duluth, MN–WI Burlington York Fargo-Moorhead, ND–MN Charlotte Grand Forks, ND–MN Durham Rhode Island La Crosse, WI–MN Fayetteville Fall River, MA–RI Minneapolis-St.Paul Gastonia Newport Rochester Goldsboro Providence-Pawtucket, RI–MA St. Cloud Greensboro Greenville South Carolina Mississippi Hickory Anderson Biloxi-Gulfport High Point Augusta, GA–SC Hattiesburg Jacksonville Charleston Jackson Kannapolis Columbia Memphis, TN–AR–MS Raleigh Florence Pascagoula Rocky Mount Greenville Wilmington Myrtle Beach Missouri Winston-Salem Rock Hill Columbia Spartanburg Joplin North Dakota Sumter Kansas City, MO–KS Bismark St. Joseph, MO–KS Fargo-Moorhead, ND–MN South Dakota St. Louis, MO–IL Grand Forks, ND–MN Rapid City Springfield Sioux City, IA–NE–SD Ohio Sioux Falls Montana Akron Billings Canton Tennessee Great Falls Cincinnati, OH–KY Bristol, TN-Bristol, VA

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Chattanooga, TN–GA Waco Hagerstown, MD–PA–WV Clarksville, TN–KY Wichita Falls Huntington-Ashland, WV–KY–OH Jackson Parkersburg, WV–OH Utah Johnson City Steubenville-Weirton, OH–WV–PA Kingsport, TN–VA Logan Wheeling, WV–OH Knoxville Ogden Memphis, TN–AR–MS Provo-Orem Wisconsin Nashville Salt Lake City Appleton-Neenah Texas Vermont Beloit, WI–IL Duluth, MN–WI Abilene Burlington Eau Claire Amarillo Austin Virginia Green Bay Beaumont Bristol, TN-Bristol, VA Janesville Brownsville Charlottesville Kenosha Bryan-College Station Danville La Crosse, WI–MN Corpus Christi Fredericksburg Madison Dallas-Fort Worth Kingsport, TN–VA Milwaukee Denton Lynchburg Oshkosh El Paso, TX–NM Norfolk-Virginia Beach-Newport News Racine Galveston Petersburg Round Lake Beach-McHenry, IL–WI Harlingen Richmond Sheboygan Houston Roanoke Wausau Killeen Washington, DC–MD–VA Laredo Wyoming Washington Lewisville Casper Longview Bellingham Cheyenne Lubbock Bremerton McAllen-Edinburg-Mission Longview, WA–OR Puerto Rico Midland Olympia Aquadilla Odessa Portland-Vancouver, OR–WA Arecibo Port Arthur Richland-Kennewick-Pasco Caguas San Angelo Seattle Cayey San Antonio Spokane Humacao Sherman-Denison Tacoma Mayaguez Temple Yakima Ponce Texarkana, TX-Texarkana, AR San Juan Texas City West Virginia Vega Baja-Manati Tyler Charleston Victoria Cumberland, MD–WV BILLING CODE 6560±50±P

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Appendix 4 to the Preamble—No Exposure Certification Form

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BILLING CODE 6560±50±C on a schedule consistent with a State The rule allows a covered small MS4 to Appendix 5 to Preamble—Regulatory watershed permitting approach. ‘‘piggy-back’’ on to the storm water management program of an adjoining Phase Clarifying, Consolidating, or Simplifying Flexibility for Small Entities I MS4. A small MS4 is waived from the Compliance and Reporting Requirements A. Regulatory Flexibility for Small application requirements of Municipal Storm Sewer Systems (MS4s) The rule avoids duplication in permit § 122.26(d)(1)(iii), (iv) and (d)(2)(iii) requirements by allowing NPDES permitting [discharge characterization] and may satisfy Different Compliance, Reporting, or authorities to include permit conditions that the requirements of § 122.26(d)(1)(v) and Timetables That Are Responsive to Resources direct an MS4 to follow the requirements of (d)(2)(iv) [identifying a management plan] by of Small Entities a qualifying local program rather than the referencing the adjoining Phase I MS4’s NPDES permitting authorities can issue requirements of a minimum measure. storm water management plan. general permits instead of requiring Compliance with these programs is The rule accommodates the use of the individual permits. This flexibility avoids the considered compliance with the NPDES watershed approach through NPDES general high application costs and administrative general permit. permits that could be issued on a watershed burden associated with individual permits. The rule allows NPDES permitting basis. The small MS4 can develop measures NPDES permitting authorities can specify a authorities to recognize existing that are tailored to meet their watershed responsibilities among different municipal time period of up to five years for small MS4s requirements. The small MS4’s storm water entities to satisfy obligations for the to fully develop and implement their management program can tie into watershed- minimum control measures. program wide plans. A further alternative allows a small MS4 to Analytic monitoring is not required. satisfy its NPDES permit obligations if Performance Rather Than Design Standards After the first permit term and subsequent another governmental entity is already for Small Entities permit terms, submittal of a summary report implementing a minimum control measure in Small governmental jurisdictions whose is only required in years two and four (Phase the jurisdiction of the small MS4. The MS4s are covered by this rule are allowed to I municipalities are currently required to following conditions must be met: choose the best management practices submit a detailed report each year). 1. The other entity is implementing the (BMPs) to be implemented and the A brief reporting format is encouraged to control measure, measurable goals for each of the minimum facilitate compiling and analyzing data from 2. The particular control measure (or control measures: submitted reports. EPA intends to develop a component thereof) is at least as stringent as 1. Public education and outreach on storm model form for this purpose. the corrersponding NPDES permit water impacts NPDES Permitting Authorities can phase in requirement, and 2. Public Involvement/Participation permit coverage for small MS4s serving 3. The other entity agrees to implement the 3. Illicit discharge detection and jurisdictions with a population under 10,000 control measure on your behalf. elimination

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4. Construction site storm water runoff most appropriate for the construction site AL Elmore County control based on the operator’s storm water pollution AL Etowah County 5. Post-construction storm water prevention plan. AL Flint City town management in new development and AL Florence city redevelopment Waivers for Small Entities From Coverage AL Gadsden city 6. Pollution prevention/good housekeeping Waivers could be granted based on the use AL Glencoe city for municipal operations of a rainfall erosivity factor or a AL Grimes town EPA will provide guidance and comprehensive analysis of water quality AL Hartselle city recommend, but not mandate, certain BMPs impacts. AL Hobson City town for some of the minimum control measures (A) Low rainfall waiver: When the rainfall AL Hokes Bluff city listed above. States can provide guidance to erosivity factor (‘‘R’’ from Revised Universal AL Houston County supplement or supplant EPA guidance. Soil Loss Equation) is less than 5 during the AL Kinsey town Small MS4s can identify the measurable period of construction activity, a permit is AL Lauderdale County goals for each of the minimum control not required. AL Lee County measures listed above. In their reports to the (B) Determination based on Water Quality AL Limestone County NPDES permitting authority, the small MS4s Analysis: The NPDES permitting authority AL Madison County must evaluate their progress towards can waive from coverage construction AL Midland City town achievement of their identified measurable activities disturbing from 1 acre up to 5 acres AL Montgomery County goals. of land where storm water controls are not AL Morgan County needed based on: AL Muscle Shoals city Waivers for Small Entities From Coverage 1. A TMDL approved or established by AL Napier Field town The rule allows permitting authorities to EPA that addresses the pollutants of concern, AL Northport city waive from coverage MS4s operated by small or AL Opelika city governmental jurisdictions located within an 2. For non-impaired waters, an equivalent AL Oxford city urbanized area and serving a population less analysis that determines that such allocations AL Phenix City city than 1,000 people where the permitting are not needed to protect water quality based AL Prattville city authority has determined the MS4 is not on consideration of existing in-stream AL Priceville town contributing substantially to the pollutant concentrations, expected growth in pollutant AL Rainbow City city loadings of an interconnected MS4 and, if the contributions from all sources, and a margin AL Russell County MS4 discharges pollutants that have been of safety. AL Sheffield city identified as a cause of impairment in the AL Southside city receiving water of the MS4 then the C. Regulatory Flexibility for Industrial/ AL Sylvan Springs town permitting authority has determined that Commercial Facilities AL Talladega County storm water controls are not needed based on Waivers for Small Entities From Coverage AL Tuscaloosa city a TMDL that addresses the pollutants of AL Tuscaloosa County The rule provides a ‘‘no-exposure’’ waiver concern. AL Tuscumbia city provision for Phase I industrial/commercial The rule allows the permitting authority to AL Weaver city facilities. Qualifying facilities seeking this waive from coverage MS4s serving a AR Alexander town provision simply need to complete a self- population under 10,000 where the AR Barling city certification form indicating that no permitting authority has evaluated all waters AR Benton County industrial materials or activities are exposed that receive a discharge from the MS4 and AR Cammack Village city to rain, snow, snow melt and/or runoff. the permitting authority has determined that AR Crawford County storm water controls are not needed based on Appendix 6 of Preamble— AR Crittenden County a TMDL that addresses the pollutants of AR Farmington city concern and future discharges do not have Governmental Entities Located Fully or Partially Within an Urbanized Area AR Fayetteville city the potential to result in exceedances of AR Fort Smith city water quality standards. (This is a reference list only, not a list of AR Greenland town B. Regulatory Flexibility for Small all operators of small MS4s subject to AR Jacksonville city Construction Activities §§ 122.32–122.36. For example, a listed AR Jefferson County governmental entity is only regulated if it AR Johnson city Different Compliance, Reporting, or operates a small MS4 within an ‘‘urbanized AR Marion city Timetables That Are Responsive to Resources area’’ boundary as determined by the Bureau AR Miller County of Small Entities of the Census. Furthermore, entities such as AR North Little Rock city The rule gives NPDES permitting military bases, large hospitals, prison AR Pine Bluff city authorities discretion not to require the complexes, universities, sewer districts, and AR Pulaski County submittal of a notice of intent (NOI) for highway departments that operate a small AR Saline County coverage under a NPDES general permit, MS4 within an urbanized area are also AR Sebastian County thereby reducing administrative and subject to the permitting regulations but are AR Shannon Hills city financial burden. All construction sites not individually listed here. See AR Sherwood city disturbing greater than 5 acres must submit § 122.26(b)(16) for the definition of a small AR Springdale city an NOI. MS4 and § 122.32(a) for the definition of a AR Sunset town regulated small MS4.) AR Texarkana city Clarifying, Consolidating, or Simplifying (Source: 1990 Census of Population and AR Van Buren city Compliance and Reporting Requirements Housing, U.S. Bureau of the Census. This list AR Washington County The rule avoids duplication by allowing is subject to change with the Decennial AR West Memphis city the NPDES permitting authority to Census) AR White Hall city incorporate by reference State, Tribal, or AL Anniston city AZ Apache Junction city local programs under a NPDES general AL Attalla city AZ Chandler city permit. Compliance with these programs is AL Auburn city AZ El Mirage town considered compliance with the NPDES AL Autauga County AZ Gilbert town general permit. AL Blue Mountain town AZ Guadalupe town AL Calhoun County AZ Maricopa County Performance Rather Than Design Standards AL Colbert County AZ Oro Valley town for Small Entities AL Dale County AZ Paradise Valley town The operator of a covered construction AL Decatur city AZ Peoria city activity selects and implement the BMPs AL Dothan city AZ Pinal County

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AZ South Tucson city CA Victorville city CT Farmington town AZ Surprise town CA Villa Park city CT Franklin town AZ Tolleson city CA Visalia city CT Glastonbury town AZ Youngtown town CA Watsonville city CT Greenwich town AZ Yuma city CA West Sacramento city CT Groton city AZ Yuma County CA Yolo County CT Groton town CA Apple Valley town CA Yuba City city CT Guilford town CA Belvedere city CA Yuba County CT Hamden town CA Benicia city CO Adams County CT Hartford city CA Brentwood city CO Arvada city CT Hartford County CA Butte County CO Boulder city CT Ledyard town CA Capitola city CO Boulder County CT Lisbon town CA Carmel-by-the-Sea city CO Bow Mar town CT Litchfield County CA Carpinteria city CO Broomfield city CT Manchester town CA Ceres city CO Cherry Hills Village city CT Meriden city CA Chico city CO Columbine Valley town CT Middlebury town CA Compton city CO Commerce City city CT Middlefield town CA Corte Madera town CO Douglas County CT Middlesex County CA Cotati city CO Edgewater city CT Middletown city CA Davis city CO El Paso County CT Milford city (remainder) CA Del Rey Oaks city CO Englewood city CT Monroe town CA Fairfax town CO Evans city CT Montville town CA Hesperia city CO Federal Heights city CT Naugatuck borough CA Imperial County CO Fort Collins city CT New Britain city CA Lakewood city CO Fountain city CT New Canaan town CA Lancaster city CO Garden City town CT New Fairfield town CA Larkspur city CO Glendale city CT New Haven city CA Lodi city CO Golden city CT New Haven County CA Lompoc city CO Grand Junction city CT New London city CA Marin County CO Greeley city CT New London County CA Marina city CO Greenwood Village city CT New Milford town CA Marysville city CO Jefferson County CT Newington town CA Merced city CO La Salle town CT Newtown town CA Merced County CO Lakeside town CT North Branford town CA Mill Valley city CO Larimer County CT North Haven town CA Monterey city CO Littleton city CT Norwalk city CA Monterey County CO Longmont city CT Norwich city CA Morgan Hill city CO Manitou Springs city CT Orange town CA Napa city CO Mesa County CT Oxford town CA Napa County CO Mountain View town CT Plainville town CA Novato city CO Northglenn city CT Plymouth town CA Pacific Grove city CO Pueblo city CT Portland town CA Palm Desert city CO Pueblo County CT Preston town CA Palmdale city CO Sheridan city CT Prospect town CA Piedmont city CO Thornton city CT Rocky Hill town CA Placer County CO Weld County CT Seymour town CA Redding city CO Westminster city CT Shelton city CA Rocklin city CO Wheat Ridge city CT Sherman town CA Rohnert Park city CT Ansonia city CT Somers town CA Roseville city CT Avon town CT South Windsor town CA Ross town CT Beacon Falls town CT Southington town CA San Anselmo town CT Berlin town CT Sprague town CA San Buenaventura (Ventura) city CT Bethel town CT Stonington town CA San Francisco city CT Bloomfield town CT Stratford town CA San Joaquin County CT Bozrah town CT Suffield town CA San Luis Obispo city CT Branford town CT Thomaston town CA San Luis Obispo County CT Bridgeport city CT Thompson town CA San Rafael city CT Bristol city CT Tolland County CA Sand City city CT Brookfield town CT Tolland town CA Santa Barbara city CT Burlington town CT Trumbull town CA Santa Barbara County CT Cheshire town CT Vernon town CA Santa Cruz city CT Cromwell town CT Wallingford town CA Santa Cruz County CT Danbury city CT Waterbury city CA Santa Maria city CT Darien town CT Waterford town CA Sausalito city CT Derby city CT Watertown town CA Scotts Valley city CT Durham town CT West Hartford town CA Seaside city CT East Granby town CT West Haven city CA Shasta County CT East Hartford town CT Weston town CA Solano County CT East Haven town CT Westport town CA Sonoma County CT East Lyme town CT Wethersfield town CA Stanislaus County CT East Windsor town CT Wilton town CA Suisun City city CT Easton town CT Windham County CA Sutter County CT Ellington town CT Windsor Locks town CA Tiburon town CT Enfield town CT Windsor town CA Tulare County CT Fairfield County CT Wolcott town CA Vacaville city CT Fairfield town CT Woodbridge town

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CT Woodmont borough FL Sweetwater city IA Riverdale city DE Camden town FL Titusville city IA Robins city DE Dover city FL Valparaiso city IA Scott County DE Kent County FL Vero Beach city IA Sergeant Bluff city DE Newark city FL Virginia Gardens village IA Sioux City city DE Wyoming town FL Volusia County IA University Heights city FL Alachua County FL Walton County IA Urbandale city FL Baldwin town FL Weeki Wachee city IA Warren County FL Bay County FL West Melbourne city IA Waterloo city FL Belleair Shore town FL Windermere town IA West Des Moines city FL Biscayne Park village GA Albany city IA Windsor Heights city FL Brevard County GA Athens city IA Woodbury County FL Callaway city GA Bartow County ID Ada County FL Cape Canaveral city GA Brunswick city ID Ammon city FL Cedar Grove town GA Catoosa County ID Bannock County FL Charlotte County GA Centerville city ID Bonneville County FL Cinco Bayou town GA Chattahoochee County ID Chubbuck city FL Clay County GA Cherokee County ID Idaho Falls city FL Cocoa Beach city GA Chickamauga city ID Iona city FL Cocoa city GA Clarke County ID Pocatello city FL Collier County GA Columbia County ID Power County FL Daytona Beach city GA Conyers city IL Addison township FL Daytona Beach Shores city GA Dade County IL Addison village FL Destin city GA Dougherty County IL Algonquin township FL Edgewater city GA Douglas County IL Algonquin village FL El Portal village GA Douglasville city IL Alorton village FL Florida City city GA Fayette County IL Alsip village FL Fort Pierce city GA Floyd County IL Alton city FL Fort Walton Beach city GA Fort Oglethorpe city IL Antioch township FL Gainesville city GA Glynn County IL Antioch village FL Gulf Breeze city GA Grovetown city IL Arlington Heights village FL Hernando County GA Henry County IL Aroma Park village FL Hillsboro Beach town GA Houston County IL Aroma township FL Holly Hill city GA Jones County IL Aurora city FL Indialantic town GA Lee County IL Aurora township FL Indian Harbour Beach city GA Lookout Mountain city IL Avon township FL Indian River County GA Mountain Park city IL Ball township FL Indian River Shores town GA Oconee County IL Bannockburn village FL Indian Shores town GA Payne city IL Barrington township FL Kissimmee city GA Rockdale County IL Barrington village FL Lazy Lake village GA Rome city IL Bartlett village FL Lynn Haven city GA Rossville city IL Bartonville village FL Malabar town GA Stockbridge city IL Batavia city FL Marion County GA Vernonburg town IL Batavia township FL Martin County GA Walker County IL Beach Park village FL Mary Esther city GA Warner Robins city IL Bedford Park village FL Melbourne Beach town GA Winterville city IL Belleville city FL Melbourne city GA Woodstock city IL Bellevue village FL Melbourne Village town IA Altoona city IL Bellwood village FL Naples city IA Asbury city IL Bensenville village FL New Smyrna Beach city IA Bettendorf city IL Benton township FL Niceville city IA Black Hawk County IL Berkeley village FL Ocala city IA Buffalo city IL Berwyn city FL Ocean Breeze Park town IA Carter Lake city IL Bethalto village FL Okaloosa County IA Cedar Falls city IL Blackhawk township FL Orange Park town IA Clive city IL Bloom township FL Ormond Beach city IA Coralville city IL Bloomingdale township FL Osceola County IA Council Bluffs city IL Bloomingdale village FL Palm Bay city IA Dallas County IL Bloomington city FL Panama City city IA Dubuque city IL Bloomington township FL Parker city IA Dubuque County IL Blue Island city FL Ponce Inlet town IA Elk Run Heights city IL Bolingbrook village FL Port Orange city IA Evansdale city IL Bourbonnais township FL Port St. Lucie city IA Hiawatha city IL Bourbonnais village FL Punta Gorda city IA Iowa City city IL Bowling township FL Rockledge city IA Johnson County IL Bradley village FL Santa Rosa County IA Johnston city IL Bremen township FL Satellite Beach city IA Le Claire city IL Bridgeview village FL Sewall’s Point town IA Linn County IL Bristol township FL Shalimar town IA Marion city IL Broadview village FL South Daytona city IA Norwalk city IL Brookfield village FL Springfield city IA Panorama Park city IL Brooklyn village FL St. Johns County IA Pleasant Hill city IL Buffalo Grove village FL St. Lucie County IA Polk County IL Burbank city FL St. Lucie village IA Pottawattamie County IL Burnham village FL Stuart city IA Raymond city IL Burr Ridge village

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IL Burritt township IL Elk Grove Village village IL Jerome village IL Burton township IL Elm Grove township IL Jo Daviess County IL Cahokia village IL Elmhurst city IL Joliet city IL Calumet City city IL Elmwood Park village IL Joliet township IL Calumet Park village IL Evanston city IL Justice village IL Calumet township IL Evergreen Park village IL Kane County IL Canteen township IL Fairmont City village IL Kankakee city IL Capital township IL Fairview Heights city IL Kankakee County IL Carbon Cliff village IL Flossmoor village IL Kankakee township IL Carol Stream village IL Fondulac township IL Kendall County IL Carpentersville Village IL Ford Heights village IL Kenilworth village IL Cary village IL Forest Park village IL Kickapoo township IL Caseyville township IL Forest View village IL Kildeer village IL Caseyville village IL Forsyth village IL La Grange Park village IL Centreville city IL Fort Russell township IL La Grange village IL Centreville township IL Foster township IL Lake Barrington village IL Champaign city IL Fox Lake village IL Lake Bluff village IL Champaign County IL Fox River Grove village IL Lake Forest city IL Champaign township IL Frankfort township IL Lake in the Hills village IL Channahon township IL Frankfort village IL Lake Villa township IL Cherry Valley township IL Franklin Park village IL Lake Villa village IL Cherry Valley village IL Fremont township IL Lake Zurich village IL Chicago city IL Gardner township IL Lakemoor village IL Chicago Heights city IL Geneva city IL Lakewood village IL Chicago Ridge village IL Geneva township IL Lansing village IL Chouteau township IL Gilberts village IL Leland Grove city IL Cicero town IL Glen Carbon village IL Lemont township IL Cincinnati township IL Glen Ellyn village IL Leyden township IL Clarendon Hills village IL Glencoe village IL Libertyville township IL Coal Valley township IL Glendale Heights village IL Libertyville village IL Coal Valley village IL Glenview village IL Limestone township IL Collinsville city IL Glenwood village IL Lincolnshire village IL Collinsville township IL Godfrey township IL Lincolnwood village IL Colona township IL Golf village IL Lindenhurst village IL Colona village IL Grafton township IL Lisle township IL Columbia city IL Grandview village IL Lisle village IL Country Club Hills city IL Granite City city IL Lockport city IL Countryside city IL Grant township IL Lockport township IL Crest Hill city IL Grayslake village IL Lombard village IL Crestwood village IL Green Oaks village IL Long Creek township IL Crete township IL Green Rock city IL Long Grove village IL Crete village IL Groveland township IL Loves Park city IL Creve Coeur village IL Gurnee village IL Lynwood village IL Crystal Lake city IL Hainesville village IL Lyons township IL Cuba township IL Hampton township IL Lyons village IL Curran township IL Hampton village IL Machesney Park village IL Darien city IL Hanna township IL Macon County IL Decatur city IL Hanover Park village IL Madison city IL Decatur township IL Hanover township IL Madison County IL Deer Park village IL Harlem township IL Maine township IL Deerfield township IL Harristown township IL Markham city IL Deerfield village IL Harristown village IL Marquette Heights city IL Des Plaines city IL Hartford village IL Maryville village IL Dixmoor village IL Harvey city IL Matteson village IL Dolton village IL Harwood Heights village IL Maywood village IL Dorr township IL Hawthorn Woods village IL McCook village IL Downers Grove township IL Hazel Crest village IL McCullom Lake village IL Downers Grove village IL Henry County IL McHenry city IL Dry Grove township IL Hensley township IL McHenry County IL Du Page township IL Hickory Hills city IL McHenry township IL Dundee township IL Hickory Point township IL McLean County IL Dunleith township IL Highland Park city IL Medina township IL Dupo village IL Highwood city IL Melrose Park village IL East Alton village IL Hillside village IL Merrionette Park village IL East Dubuque city IL Hinsdale village IL Midlothian village IL East Dundee village IL Hodgkins village IL Milan village IL East Hazel Crest village IL Hoffman Estates village IL Milton township IL East Moline city IL Hollis township IL Moline city IL East Peoria city IL Homer township IL Moline township IL East St. Louis city IL Hometown city IL Monee township IL Edwardsville city IL Homewood village IL Monroe County IL Edwardsville township IL Indian Creek village IL Montgomery village IL Ela township IL Indian Head Park village IL Moro township IL Elgin city IL Inverness village IL Morton Grove village IL Elgin township IL Itasca village IL Morton township IL Elk Grove township IL Jarvis township IL Morton village

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IL Mount Prospect village IL Riverdale village IL Troy city IL Mount Zion township IL Riverside township IL Troy township IL Mount Zion village IL Riverside village IL University Park village IL Mundelein village IL Riverwoods village IL Urbana city IL Nameoki township IL Robbins village IL Urbana township IL Naperville city IL Rochester township IL Venice city IL Naperville township IL Rock Island city IL Venice township IL National City village IL Rock Island County IL Vernon Hills village IL New Lenox township IL Rock Island township IL Vernon township IL New Lenox village IL Rockdale village IL Villa Park village IL New Millford village IL Rockford township IL Warren township IL New Trier township IL Rockton township IL Warrenville city IL Newport township IL Rockton village IL Washington city IL Niles township IL Rolling Meadows city IL Washington Park village IL Niles village IL Romeoville village IL Washington township IL Normal town IL Roscoe township IL Wauconda township IL Normal township IL Roscoe village IL Waukegan city IL Norridge village IL Roselle village IL Waukegan township IL North Aurora village IL Rosemont village IL Wayne township IL North Barrington village IL Round Lake Beach village IL West Chicago city IL North Chicago city IL Round Lake Heights village IL West Deerfield township IL North Pekin village IL Round Lake Park village IL West Dundee village IL North Riverside village IL Round Lake village IL West Peoria township IL Northbrook village IL Roxana village IL Westchester village IL Northfield township IL Rutland township IL Western Springs village IL Northfield village IL Sangamon County IL Westmont village IL Northlake city IL Sauget village IL Wheatland township IL Norwood Park township IL Sauk Village village IL Wheaton city IL Norwood village IL Savoy village IL Wheeling township IL Nunda township IL Schaumburg township IL Wheeling village IL Oak Brook village IL Schaumburg village IL Whitmore township IL Oak Forest city IL Schiller Park village IL Will County IL Oak Grove village IL Shields township IL Willow Springs village IL Oak Lawn village IL Shiloh Valley township IL Willowbrook village IL Oak Park village IL Shiloh village IL Wilmette village IL Oakbrook Terrace city IL Shorewood village IL Winfield township IL Oakley township IL Silvis city IL Winfield village IL Oakwood Hills village IL Skokie village IL Winnebago County IL O’Fallon city IL Sleepy Hollow village IL Winnetka village IL O’Fallon township IL Somer township IL Winthrop Harbor village IL Olympia Fields village IL South Beloit city IL Wood Dale city IL Orland Hills village IL South Chicago Heights village IL Wood River city IL Orland Park village IL South Elgin village IL Wood River township IL Orland township IL South Holland village IL Woodford County IL Oswego township IL South Moline township IL Woodridge village IL Oswego village IL South Rock Island township IL Woodside township IL Otto township IL South Roxana village IL Worth township IL Owen township IL South Wheatland township IL Worth village IL Palatine township IL Southern View village IL York township IL Palatine village IL Spring Bay township IL Zion city IL Palos Heights city IL Springfield city IN Aboite township IL Palos Hills city IL Springfield township IN Adams township IL Palos Park village IL St. Charles city IN Allen County IL Palos township IL St. Charles township IN Anderson city IL Park City city IL St. Clair County IN Anderson township IL Park Forest village IL St. Clair township IN Baugo township IL Park Ridge city IL Steger village IN Beech Grove city IL Pekin city IL Stickney township IN Bloomington city IL Pekin township IL Stickney village IN Bloomington township IL Peoria city IL Stites township IN Boone County IL Peoria County IL Stone Park village IN Buck Creek township IL Peoria Heights village IL Stookey township IN Calumet township IL Phoenix village IL Streamwood village IN Carmel city IL Pin Oak township IL Sugar Grove township IN Castleton town IL Plainfield township IL Sugar Loaf township IN Cedar Creek township IL Plainfield village IL Summit village IN Center township IL Pontoon Beach village IL Sunnyside village IN Centre township IL Posen village IN Chesterfield town IL Precinct 10 IL Swansea village IN Chesterton town IL Prospect Heights city IL Tazewell County IN Clark County IL Proviso township IL Thornton township IN Clarksville town IL Rich township IL Thornton village IN Clay township IL Richton Park village IL Tinley Park village IN Clermont town IL Richwoods township IL Tolono township IN Cleveland township IL River Forest village IL Tower Lakes village IN Concord township IL River Grove village IL Tremont township IN Country Club Heights town

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IN Crown Point city IN Osolo township KS Leawood city IN Crows Nest town IN Otter Creek township KS Lenexa city IN Cumberland town IN Penn township KS Merriam city IN Daleville town IN Perry township KS Minneha township IN Delaware County IN Pigeon township KS Mission city IN Delaware township IN Pike township KS Mission Hills city IN Dyer town IN Pleasant township KS Mission township IN Eagle township IN Portage city KS Mission Woods city IN East Chicago city IN Portage township KS Monticello township IN Edgewood town IN Porter County KS Ohio township IN Elkhart city IN Porter town KS Olathe city IN Elkhart County IN Richland township KS Olathe township IN Elkhart township IN Riley township KS Park City city IN Evansville city IN River Forest town KS Park township IN Fairfield township IN Rocky Ripple town KS Prairie Village city IN Fall Creek township IN Roseland town KS Riverside township IN Fishers town IN Ross township KS Roeland Park city IN Floyd County IN Salem township KS Salem township IN Fort Wayne city IN Schererville town KS Sedgwick County IN Franklin township IN Seelyville town KS Shawnee city IN Gary city IN Sellersburg town KS Shawnee County IN German township IN Selma town KS Shawnee township IN Goshen city IN Silver Creek township KS Soldier township IN Greenwood city IN South Bend city KS Tecumseh township IN Griffith town IN Southport city KS Topeka township IN Hamilton County IN Speedway town KS Waco township IN Hamilton township IN Spring Hill town KS Wakarusa township IN Hammond city IN St. John town KS Washington township IN Hancock County IN St. John township KS Westwood city IN Hanover township IN St. Joseph County KS Westwood Hills city IN Harris township IN St. Joseph township KS Williamsport township IN Harrison township IN Sugar Creek township KS Wyandotte County IN Hendricks County IN Taylor township KY Alexandria city IN Highland town IN Terre Haute city KY Ashland city IN Hobart city IN Tippecanoe County KY Bellefonte city IN Hobart township IN Tippecanoe township KY Bellevue city IN Homecroft town IN Union township KY Boone County IN Honey Creek township IN Utica township KY Boyd County IN Howard County IN Van Buren township KY Bromley city IN Howard township IN Vanderburgh County KY Bullitt County IN Indian Village town IN Vigo County KY Campbell County IN Jackson township IN Wabash township KY Catlettsburg city IN Jefferson township IN Warren Park town KY Christian County IN Jeffersonville city IN Warren township KY Covington city IN Jeffersonville township IN Warrick County KY Crescent Park city IN Johnson County IN Washington township KY Crescent Springs city IN Knight township IN Wayne township KY Crestview city IN Kokomo city IN Wea township KY Crestview Hills city IN Lafayette city IN West Lafayette city KY Daviess County IN Lafayette township IN West Terre Haute town KY Dayton city IN Lake County IN Westchester township KY Edgewood city IN Lake Station city IN Westfield town KY Elsmere city IN Lawrence city IN White River township KY Erlanger city IN Lawrence township IN Whiteland town KY Fairview city IN Liberty township IN Whiting city KY Flatwoods city IN Lincoln township IN Williams Creek town KY Florence city IN Lost Creek township IN Woodlawn Heights town KY Forest Hills city IN Madison County IN Wynnedale town KY Fort Mitchell city IN Meridian Hills town IN Yorktown town KY Fort Thomas city IN Merrillville town IN Zionsville town KY Fort Wright city IN Mishawaka city KS Attica township KY Fox Chase city IN Monroe County KS Bel Aire city KY Greenup County IN Mount Pleasant township KS Countryside city KY Hebron Estates city IN Muncie city KS Delano township KY Henderson city IN Munster town KS Doniphan County KY Henderson County IN New Albany city KS Douglas County KY Highland Heights city IN New Albany township KS Eastborough city KY Hillview city IN New Chicago town KS Elwood city KY Hunters Hollow city IN New Haven city KS Fairway city KY Independence city IN New Whiteland town KS Gypsum township KY Jessamine County IN Newburgh town KS Haysville city KY Kenton County IN North Crows Nest town KS Johnson County KY Kenton Vale city IN North township KS Kechi city KY Lakeside Park city IN Ogden Dunes town KS Kechi township KY Latonia Lakes city IN Ohio township KS Lake Quivira city KY Ludlow city IN Osceola town KS Lawrence city KY Melbourne city

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KY Newport city MA Cambridge city MA Medway town KY Oak Grove city MA Canton town MA Melrose city KY Owensboro city MA Charlton town MA Merrimac town KY Park Hills city MA Chelmsford town MA Methuen town KY Pioneer Village city MA Chelsea city MA Middlesex County KY Raceland city MA Chicopee city MA Middleton town KY Russell city MA Cohasset town MA Millbury town KY Silver Grove city MA Concord town MA Millis town KY Southgate city MA Dalton town MA Millville town KY Taylor Mill city MA Danvers town MA Milton town KY Villa Hills city MA Dartmouth town MA Nahant town KY Wilder city MA Dedham town MA Natick town KY Woodlawn city MA Dennis town MA Needham town KY Wurtland city MA Dighton town MA New Bedford city LA Alexandria city MA Dover town MA Newton city LA Baker city MA Dracut town MA Norfolk town LA Ball town MA Dudley town MA North Andover town LA Bossier City city MA East Bridgewater town MA North Attleborough town LA Bossier Parish MA East Longmeadow town MA North Reading town LA Broussard town MA Easthampton town MA Northampton city LA Caddo Parish MA Easton town MA Northborough town LA Calcasieu Parish MA Essex County MA Northbridge town LA Carencro city MA Essex town MA Norton town LA Denham Springs city MA Everett city MA Norwell town LA Houma city MA Fairhaven town MA Norwood town LA Lafayette city MA Fall River city MA Oxford town LA Lafayette Parish MA Fitchburg city MA Paxton town LA Lafourche Parish MA Foxborough town MA Peabody city LA Lake Charles city MA Framingham town MA Pembroke town LA Livingston Parish MA Franklin town MA Pittsfield city LA Monroe city MA Freetown town MA Plainville town LA Ouachita Parish MA Georgetown town MA Plymouth County LA Pineville city MA Gloucester city MA Quincy city LA Plaquemines Parish MA Grafton town MA Randolph town LA Port Allen city MA Granby town MA Raynham town LA Rapides Parish MA Groton town MA Reading town LA Richwood town MA Groveland town MA Rehoboth town LA Scott town MA Hadley town MA Revere city LA Slidell city MA Halifax town MA Rockland town LA St. Bernard Parish MA Hamilton town MA Rockport town LA St. Charles Parish MA Hampden County MA Salem city LA St. Tammany Parish MA Hampden town MA Sandwich town LA Sulphur city MA Hampshire County MA Saugus town LA Terrebonne Parish MA Hanover town MA Scituate town LA West Baton Rouge Parish MA Hanson town MA Seekonk town LA West Monroe city MA Haverhill city MA Sharon town LA Westlake city MA Hingham town MA Shrewsbury town LA Zachary city MA Hinsdale town MA Somerset town MA Abington town MA Holbrook town MA Somerville city MA Acton town MA Holden town MA South Hadley town MA Acushnet town MA Holliston town MA Southampton town MA Agawam town MA Holyoke city MA Southborough town MA Amesbury town MA Hudson town MA Southwick town MA Andover town MA Hull town MA Springfield city MA Arlington town MA Lanesborough town MA Stoneham town MA Ashland town MA Lawrence city MA Stoughton town MA Attleboro city MA Leicester town MA Stow town MA Auburn town MA Leominster city MA Sudbury town MA Avon town MA Lexington town MA Sutton town MA Barnstable County MA Lincoln town MA Swampscott town MA Barnstable town MA Littleton town MA Swansea town MA Bedford town MA Longmeadow town MA Taunton city MA Bellingham town MA Lowell city MA Tewksbury town MA Belmont town MA Ludlow town MA Tyngsborough town MA Berkshire County MA Lunenburg town MA Uxbridge town MA Beverly city MA Lynn city MA Wakefield town MA Billerica town MA Lynnfield town MA Walpole town MA Blackstone town MA Malden city MA Waltham city MA Boxborough town MA Manchester town MA Watertown town MA Boylston town MA Mansfield town MA Wayland town MA Braintree town MA Marblehead town MA Webster town MA Bridgewater town MA Marlborough city MA Wellesley town MA Bristol County MA Mashpee town MA Wenham town MA Brockton city MA Maynard town MA West Boylston town MA Brookline town MA Medfield town MA West Bridgewater town MA Burlington town MA Medford city MA West Springfield town

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MA Westborough town ME Cape Elizabeth town MI Delta township MA Westfield city ME Cumberland County MI Detroit city MA Westford town ME Eliot town MI East China township MA Westminster town ME Falmouth town MI East Detroit city MA Weston town ME Gorham town MI East Grand Rapids city MA Westport town ME Kittery town MI East Lansing city MA Westwood town ME Lebanon town MI Eaton County MA Weymouth town ME Lewiston city MI Ecorse city MA Whitman town ME Lisbon town MI Emmett township MA Wilbraham town ME Old Town city MI Erie township MA Williamsburg town ME Orono town MI Essexville city MA Wilmington town ME Penobscot County MI Farmington city MA Winchester town ME Penobscot Indian Island Reservation MI Farmington Hills city MA Winthrop town ME Portland city MI Ferndale city MA Woburn city ME Sabattus town MI Fillmore township MA Worcester County ME Scarborough town MI Flat Rock city MA Wrentham town ME South Berwick town MI Flint township MA Yarmouth town ME South Portland city MI Flushing city MD Allegany County ME Veazie town MI Flushing township MD Annapolis city ME Westbrook city MI Fort Gratiot township MD Bel Air town ME York County MI Frankenlust township MD Berwyn Heights town MI Ada township MI Franklin village MD Bladensburg town MI Allegan County MI Fraser city MD Bowie city MI Allen Park city MI Fruitport township MD Brentwood town MI Alpine township MI Gaines township MD Brookeville town MI Ann Arbor township MI Garden City city MD Capitol Heights town MI Auburn Hills city MI Genesee County MD Cecil County MI Bangor township MI Genesee township MD Cheverly town MI Bath township MI Georgetown township MD Chevy Chase Section Five village MI Battle Creek city MI Gibraltar city MD Chevy Chase Section Three village MI Bay City city MI Grand Blanc city MD Chevy Chase town MI Bay County MI Grand Blanc township MD Chevy Chase Village town MI Bedford township MI Grand Rapids Charter township MD College Park city MI Belleville city MI Grandville city MD Colmar Manor town MI Benton Charter township MI Grosse Ile township MD Cottage City town MI Benton Harbor city MI Grosse Pointe city MD Cumberland city MI Berkley city MI Grosse Pointe Farms city MD District Heights city MI Berlin township MI Grosse Pointe Park city MD Edmonston town MI Berrien County MI Grosse Pointe Shores village MD Elkton town MI Beverly Hills village MI Grosse Pointe Woods city MD Fairmount Heights town MI Bingham Farms village MI Hampton township MD Forest Heights town MI Birmingham city MI Hamtramck city MD Frederick city MI Blackman township MI Harper Woods city MD Frostburg city MI Bloomfield Hills city MI Harrison township MD Funkstown town MI Bloomfield township MI Hazel Park city MD Gaithersburg city MI Bridgeport township MI Highland Park city MD Garrett Park town MI Brownstown township MI Highland township MD Glen Echo town MI Buena Vista Charter township MI Holland city MD Glenarden town MI Burtchville township MI Holland township MD Greenbelt city MI Burton city MI Howard township MD Hagerstown city MI Byron township MI Hudsonville city MD Highland Beach town MI Calhoun County MI Huntington Woods city MD Hyattsville city MI Canton township MI Huron township MD Kensington town MI Carrollton township MI Independence township MD Landover Hills town MI Cascade township MI Ingham County MD Laurel city MI Cass County MI Inkster city MD Martin’s Additions village MI Center Line city MI Ira township MD Morningside town MI Chesterfield township MI Jackson city MD Mount Rainier city MI Clarkston village MI Jackson County MD New Carrollton city MI Clawson city MI James township MD North Brentwood town MI Clay township MI Kalamazoo city MD Riverdale town MI Clayton township MI Kalamazoo County MD Rockville city MI Clinton County MI Kalamazoo township MD Seat Pleasant city MI Clinton township MI Keego Harbor city MD Smithsburg town MI Clio city MI Kent County MD Somerset town MI Clyde township MI Kentwood city MD Takoma Park city MI Commerce township MI Kimball township MD University Park town MI Comstock township MI Kochville township MD Walkersville town MI Cooper township MI Lake Angelus city MD Washington Grove town MI Dalton township MI Laketon township MD Williamsport town MI Davison city MI Laketown township ME Androscoggin County MI Davison township MI Lansing city ME Auburn city MI De Witt township MI Lansing township ME Bangor city MI Dearborn city MI Lathrup Village city ME Berwick town MI Dearborn Heights city MI Leoni township ME Brewer city MI Delhi Charter township MI Lincoln Park city

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MI Lincoln township MI Spring Arbor township MN Falcon Heights city MI Livonia city MI Springfield city MN Farmington city MI Macomb County MI Springfield township MN Fort Snelling unorg. MI Macomb township MI St. Clair city MN Fridley city MI Madison Heights city MI St. Clair County MN Gem Lake city MI Marysville city MI St. Clair Shores city MN Golden Valley city MI Melvindale city MI St. Clair township MN Grant township MI Meridian township MI St. Joseph Charter township MN Greenwood city MI Milford township MI St. Joseph city MN Ham Lake city MI Milton township MI Stevensville village MN Haven township MI Monitor township MI Sullivan township MN Hennepin County MI Monroe County MI Summit township MN Hermantown city MI Mount Clemens city MI Sumpter township MN Hilltop city MI Mount Morris city MI Superior township MN Hopkins city MI Mount Morris township MI Swartz Creek city MN Houston County MI Mundy township MI Sylvan Lake city MN Inver Grove Heights city MI Muskegon city MI Taylor city MN La Crescent city MI Muskegon County MI Texas township MN La Crescent township MI Muskegon Heights city MI Thetford township MN Lake Elmo city MI Muskegon township MI Thomas township MN Lakeville city MI New Baltimore city MI Trenton city MN Landfall city MI Niles city MI Troy city MN Lauderdale city MI Niles township MI Utica city MN Le Sauk township MI North Muskegon city MI Van Buren township MN Lexington city MI Northville city MI Vienna township MN Lilydale city MI Northville township MI Walker city MN Lino Lakes city MI Norton Shores city MI Walled Lake city MN Little Canada city MI Novi city MI Washington township MN Long Lake city MI Novi township MI Washtenaw County MN Loretto city MI Oak Park city MI Waterford township MN Mahtomedi city MI Oakland Charter township MI Wayne city MN Maple Grove city MI Oakland County MI West Bloomfield township MN Maple Plain city MI Orchard Lake Village city MI Westland city MN Maplewood city MI Orion township MI White Lake township MN Marion township MI Oshtemo township MI Whiteford township MN Medicine Lake city MI Ottawa County MI Williamstown township MN Medina city MI Parchment city MI Wixom city MN Mendota city MI Park township MI Wolverine Lake village MN Mendota Heights city MI Pavilion township MI Woodhaven city MN Midway township MI Pennfield township MI Wyandotte city MN Minden township MI Pittsfield township MI Wyoming city MN Minnetonka Beach city MI Plainfield township MI Ypsilanti city MN Minnetonka city MI Pleasant Ridge city MI Ypsilanti township MN Minnetrista city MI Plymouth city MI Zeeland city MN Moorhead city MI Plymouth township MI Zilwaukee city MN Moorhead township MI Pontiac city MN Andover city MN Mound city MI Port Huron city MN Anoka city MN Mounds View city MI Port Huron township MN Anoka County MN New Brighton city MI Portage city MN Apple Valley city MN New Hope city MI Portsmouth township MN Arden Hills city MN Newport city MI Redford township MN Benton County MN North Oaks city MI Richfield township MN Birchwood Village city MN North St. Paul city MI River Rouge city MN Blaine city MN Oakdale city MI Riverview city MN Bloomington city MN Oakport township MI Rochester city MN Brooklyn Center city MN Olmsted County MI Rochester Hills city MN Brooklyn Park city MN Orono city MI Rockwood city MN Burnsville city MN Osseo city MI Romulus city MN Carver County MN Plymouth city MI Roosevelt Park city MN Cascade township MN Polk County MI Roseville city MN Champlin city MN Prior Lake city MI Ross township MN Chanhassen city MN Proctor city MI Royal Oak city MN Circle Pines city MN Ramsey city MI Royal Oak township MN Clay County MN Robbinsdale city MI Saginaw city MN Coon Rapids city MN Rochester city MI Saginaw County MN Cottage Grove city MN Rochester township MI Saginaw township MN Credit River township MN Rosemount city MI Schoolcraft township MN Crystal city MN Roseville city MI Scio township MN Dakota County MN Sartell city MI Shelby township MN Dayton city MN Sauk Rapids city MI Shoreham village MN Deephaven city MN Sauk Rapids township MI Sodus township MN Dilworth city MN Savage city MI South Rockwood village MN Duluth city MN Scott County MI Southfield city MN Eagan city MN Sherburne County MI Southfield township MN East Grand Forks city MN Shoreview city MI Southgate city MN Eden Prairie city MN Shorewood city MI Spaulding township MN Excelsior city MN South St. Paul city

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MN Spring Lake Park city MO Cottleville township MO Missouri River township MN Spring Park city MO Country Club Hills city MO Missouri township MN St. Anthony city MO Country Club village MO Moline Acres city MN St. Cloud city MO Country Life Acres village MO Mount Pleasant township MN St. Cloud township MO Crestwood city MO Newton County MN St. Louis County MO Creve Coeur city MO Normandy city MN St. Paul Park city MO Creve Coeur township MO Normandy township MN Stearns County MO Crystal Lake Park city MO North Campbell No. 1 township MN Sunfish Lake city MO Dardenne township MO North Campbell No. 2 township MN Tonka Bay city MO Dellwood city MO North Campbell No. 3 township MN Vadnais Heights city MO Dennis Acres village MO North Kansas City city MN Victoria city MO Des Peres city MO North View township MN Waite Park city MO Duquesne village MO Northmoor city MN Washington County MO Edmundson village MO Northwest township MN Wayzata city MO Ellisville city MO Northwoods city MN West St. Paul city MO Fenton city MO Norwood Court town MN White Bear Lake city MO Ferguson city MO Oakland city MN White Bear township MO Ferguson township MO Oakland Park village MN Willernie city MO Flordell Hills city MO Oaks village MN Woodbury city MO Florissant city MO Oakview village MN Woodland city MO Florissant township MO Oakwood Park village MN Wright County MO Fox township MO Oakwood village MO Airport Drive village MO Friedens township MO O’Fallon city MO Airport township MO Frontenac city MO O’Fallon township MO Andrew County MO Galena township MO Olivette city MO Arnold city MO Gallatin township MO Overland city MO Avondale city MO Gladstone city MO Pagedale city MO Ballwin city MO Glen Echo Park village MO Parkdale town MO Battlefield town MO Glenaire village MO Parkville city MO Bella Villa city MO Glendale city MO Pasadena Hills city MO Bellefontaine Neighbors city MO Grandview city MO Pasadena Park village MO Bellerive village MO Grantwood Village town MO Pettis township MO Bel-Nor village MO Gravois township MO Pine Lawn city MO Bel-Ridge village MO Greendale city MO Platte County MO Belton city MO Greene County MO Platte township MO Berkeley city MO Hadley township MO Platte Woods city MO Beverly Hills city MO Hanley Hills village MO Pleasant Valley city MO Big Creek township MO Harvester township MO Prairie township MO Birmingham village MO Hazelwood city MO Queeny township MO Black Jack city MO High Ridge township MO Randolph village MO Blanchette township MO Hillsdale village MO Raymore city MO Blue Springs city MO Houston Lake city MO Raymore township MO Blue township MO Huntleigh city MO Raytown city MO Bonhomme township MO Imperial township MO Redings Mill village MO Boone County MO Iron Gates village MO Richmond Heights city MO Boone township MO Jackson County MO Rivers township MO Breckenridge Hills village MO Jasper County MO Riverside city MO Brentwood city MO Jefferson County MO Riverview village MO Bridgeton city MO Jefferson township MO Rock Hill city MO Brooking township MO Jennings city MO Rock township MO Buchanan County MO Joplin city MO Rocky Fork township MO Calverton Park village MO Joplin township MO Saginaw village MO Campbell No. 1 township MO Kickapoo township MO Shoal Creek Drive village MO Campbell No. 2 township MO Kimmswick city MO Shoal Creek township MO Carl Junction city MO Kinloch city MO Shrewsbury city MO Carroll township MO Kirkwood city MO Silver Creek village MO Carterville city MO Ladue city MO Sioux township MO Cass County MO Lake St. Louis city MO Sni-A-Bar township MO Cedar township MO Lake Tapawingo city MO Spanish Lake township MO Center township MO Lake Waukomis city MO Spencer Creek township MO Charlack city MO Lakeshire city MO St. Ann city MO Chesterfield city MO Leawood village MO St. Charles city MO Chouteau township MO Lee’s Summit city MO St. Ferdinand township MO Christian County MO Lemay township MO St. George city MO Clarkson Valley city MO Lewis and Clark township MO St. John city MO Clay County MO Liberty city MO St. Joseph city MO Clay township MO Liberty township MO St. Louis city MO Claycomd village MO Mac Kenzie village MO St. Peters city MO Clayton city MO Manchester city MO St. Peters township MO Clayton township MO Maplewood city MO Sugar Creek city MO Cliff Village village MO Marlborough village MO Sunset Hills city MO Columbia city MO Maryland Heights city MO Sycamore Hills village MO Columbia township MO May township MO Town and Country city MO Concord township MO Meramec township MO Twin Groves township MO Cool Valley city MO Midland township MO Twin Oaks village MO Cottleville town MO Mineral township MO Unity Village village

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MO University City city NC Catawba County ND Grand Forks County MO Uplands Park village NC Chapel Hill town ND Grand Forks township MO Valley Park city NC China Grove town ND Hay Creek township MO Velda Village city NC Clemmons village ND Lincoln city MO Velda Village Hills village NC Concord city ND Mandan city MO Vinita Park city NC Conover city ND Mandan unorg. MO Vinita Terrace village NC Cramerton town ND Morton County MO Warson Woods city NC Dallas town ND Reed township MO Washington township NC Davidson County ND West Fargo city MO Wayne township NC Durham County NE Bellevue city MO Weatherby Lake city NC Edgecombe County NE Bellevue No. 2 precinct MO Webb City city NC Elon College town NE Benson precinct MO Webster Groves city NC Fletcher town NE Boys Town village MO Wellston city NC Forsyth County NE Chicago precinct MO Wentzville township NC Garner town NE Covington precinct MO Westwood village NC Gaston County NE Dakota County MO Wilbur Park village NC Gastonia city NE Douglas County MO Wilson township NC Gibsonville town NE Douglas precinct MO Winchester city NC Goldsboro city NE Florence precinct MO Windsor township NC Graham city NE Garfield precinct MO Woodson Terrace city NC Greenville city NE Gilmore No. 1 precinct MO Zumbehl township NC Guilford County NE Gilmore No. 2 precinct MS Bay St. Louis city NC Harnett County NE Gilmore No. 3 precinct MS Biloxi city NC Haw River town NE Grant precinct MS Brandon city NC Henderson County NE Highland No. 1 precinct MS Clinton city NC Hickory city NE Highland No. 2 precinct MS DeSoto County NC High Point city NE Jefferson precinct MS D’Iberville city NC Hildebran town NE La Platte precinct MS Flowood town NC Hope Mills town NE La Vista city MS Forrest County NC Indian Trail town NE Lancaster County MS Gautier city NC Jacksonville city NE Lancaster precinct MS Gulfport city NC Jamestown town NE McArdle precinct MS Hancock County NC Kannapolis city NE Millard precinct MS Harrison County NC Landis town NE Papillion city MS Hattiesburg city NC Leland town NE Papillion No. 2 precinct MS Hinds County NC Long View town NE Pawnee precinct MS Horn Lake city NC Lowell city NE Ralston city MS Jackson County NC Matthews town NE Richland No. 1 precinct MS Lamar County NC McAdenville town NE Richland No. 2 precinct MS Long Beach city NC Mebane city NE Richland No. 3 precinct MS Madison city NC Mecklenburg County NE Sarpy County MS Madison County NC Mint Hill town NE South Sioux City city MS Moss Point city NC Montreat town NE Union precinct MS Ocean Springs city NC Mount Holly city NE Yankee Hill precinct MS Pascagoula city NC Nash County NH Amherst town MS Pass Christian city NC New Hanover County NH Auburn town MS Pearl city NC Newton city NH Bedford town MS Petal city NC Onslow County NH Dover city MS Rankin County NC Orange County NH Durham town MS Richland city NC Pineville town NH Goffstown town MS Ridgeland city NC Pitt County NH Hillsborough County MS Southaven city NC Randolph County NH Hollis town MS Waveland city NC Ranlo town NH Hooksett town MT Billings city NC Rocky Mount city NH Hudson town MT Cascade County NC Rowan County NH Litchfield town MT Great Falls city NC Rural Hall town NH Londonderry town MT Missoula city NC Spring Lake town NH Madbury town MT Missoula County NC Stallings town NH Manchester city MT Yellowstone County NC Thomasville city NH Merrimack County NC Alamance County NC Union County NH Merrimack town NC Apex town NC Wake County NH Nashua city NC Archdale city NC Walkertown town NH New Castle town NC Asheville city NC Wayne County NH Newington town NC Belmont city NC Weaverville town NH Pelham town NC Belville town NC Wilmington city NH Plaistow town NC Bessemer City city NC Winterville town NH Portsmouth city NC Biltmore Forest town NC Woodfin town NH Rochester city NC Black Mountain town NC Wrightsville Beach town NH Rockingham County NC Brookford town ND Barnes township NH Rollinsford town NC Brunswick County ND Bismarck city NH Rye town NC Buncombe County ND Bismarck unorg. NH Salem town NC Burke County ND Burleigh County NH Somersworth city NC Burlington city ND Captain’s Landing township NH Strafford County NC Cabarrus County ND Cass County NH Windham town NC Carrboro town ND Fargo city NJ Aberdeen township NC Cary town ND Grand Forks city NJ Absecon city

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NJ Allendale borough NJ Deal borough NJ Hillsborough township NJ Allenhurst borough NJ Delanco township NJ Hillsdale borough NJ Alpha borough NJ Delran township NJ Hillside township NJ Alpine borough NJ Demarest borough NJ Hi-Nella borough NJ Asbury Park city NJ Denville township NJ Hoboken city NJ Atlantic City city NJ Deptford township NJ Ho-Ho-Kus borough NJ Atlantic County NJ Dover town NJ Holmdel township NJ Atlantic Highlands borough NJ Dover township NJ Hopatcong borough NJ Audubon borough NJ Dumont borough NJ Hopewell township NJ Audubon Park borough NJ Dunellen borough NJ Howell township NJ Avon-by-the-Sea borough NJ East Brunswick township NJ Hunterdon County NJ Barrington borough NJ East Greenwich township NJ Interlaken borough NJ Bay Head borough NJ East Hanover township NJ Irvington township NJ Bayonne city NJ East Newark borough NJ Island Heights borough NJ Beachwood borough NJ East Orange city NJ Jackson township NJ Bedminster township NJ East Rutherford borough NJ Jamesburg borough NJ Belleville township NJ Eastampton township NJ Jefferson township NJ Bellmawr borough NJ Eatontown borough NJ Jersey City city NJ Belmar borough NJ Edgewater borough NJ Keansburg borough NJ Bergenfield borough NJ Edgewater Park township NJ Kearny town NJ Berkeley Heights township NJ Edison township NJ Kenilworth borough NJ Berkeley township NJ Egg Harbor township NJ Keyport borough NJ Berlin borough NJ Elizabeth city NJ Kinnelon borough NJ Berlin township NJ Elk township NJ Lakehurst borough NJ Bernards township NJ Elmwood Park borough NJ Lakewood township NJ Bernardsville borough NJ Emerson borough NJ Laurel Springs borough NJ Beverly city NJ Englewood city NJ Lavallette borough NJ Bloomfield township NJ Englewood Cliffs borough NJ Lawnside borough NJ Bloomingdale borough NJ Englishtown borough NJ Lawrence township NJ Bogota borough NJ Essex Fells township NJ Leonia borough NJ Boonton town NJ Evesham township NJ Lincoln Park borough NJ Boonton township NJ Ewing township NJ Linden city NJ Bordentown city NJ Fair Haven borough NJ Lindenwold borough NJ Bordentown township NJ Fair Lawn borough NJ Linwood city NJ Bound Brook borough NJ Fairfield township NJ Little Falls township NJ Bradley Beach borough NJ Fairview borough NJ Little Ferry borough NJ Branchburg township NJ Fanwood borough NJ Little Silver borough NJ Brick township NJ Fieldsboro borough NJ Livingston township NJ Bridgewater township NJ Florence township NJ Loch Arbour village NJ Brielle borough NJ Florham Park borough NJ Lodi borough NJ Brigantine city NJ Fort Lee borough NJ Long Branch city NJ Brooklawn borough NJ Franklin Lakes borough NJ Longport borough NJ Buena borough NJ Franklin township NJ Lopatcong township NJ Buena Vista township NJ Freehold borough NJ Lumberton township NJ Burlington city NJ Freehold township NJ Lyndhurst township NJ Burlington County NJ Galloway township NJ Madison borough NJ Burlington township NJ Garfield city NJ Magnolia borough NJ Butler borough NJ Garwood borough NJ Mahwah township NJ Byram township NJ Gibbsboro borough NJ Manalapan township NJ Caldwell Borough township NJ Glassboro borough NJ Manasquan borough NJ Camden city NJ Glen Ridge Borough township NJ Manchester township NJ Cape May County NJ Glen Rock borough NJ Mantoloking borough NJ Carlstadt borough NJ Gloucester City city NJ Mantua township NJ Carneys Point township NJ Gloucester County NJ Manville borough NJ Carteret borough NJ Gloucester township NJ Maple Shade township NJ Cedar Grove township NJ Green Brook township NJ Maplewood township NJ Chatham borough NJ Greenwich township NJ Margate City city NJ Chatham township NJ Guttenberg town NJ Marlboro township NJ Cherry Hill township NJ Hackensack city NJ Matawan borough NJ Chesilhurst borough NJ Haddon Heights borough NJ Maywood borough NJ Chester township NJ Haddon township NJ Medford Lakes borough NJ Chesterfield township NJ Haddonfield borough NJ Medford township NJ Cinnaminson township NJ Hainesport township NJ Mendham borough NJ City of Orange township NJ Haledon borough NJ Mendham township NJ Clark township NJ Hamilton township NJ Mercer County NJ Clayton borough NJ Hanover township NJ Merchantville borough NJ Clementon borough NJ Harding township NJ Metuchen borough NJ Cliffside Park borough NJ Harrington Park borough NJ Middlesex borough NJ Clifton city NJ Harrison town NJ Middlesex County NJ Closter borough NJ Hasbrouck Heights borough NJ Middletown township NJ Collingswood borough NJ Haworth borough NJ Midland Park borough NJ Colts Neck township NJ Hawthorne borough NJ Millburn township NJ Commercial township NJ Hazlet township NJ Millstone borough NJ Cranford township NJ Helmetta borough NJ Milltown borough NJ Cresskill borough NJ Highland Park borough NJ Millville city NJ Cumberland County NJ Highlands borough NJ Mine Hill township

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NJ Monmouth Beach borough NJ Pompton Lakes borough NJ Verona township NJ Monmouth County NJ Prospect Park borough NJ Victory Gardens borough NJ Monroe township NJ Rahway city NJ Vineland city NJ Montclair township NJ Ramsey borough NJ Voorhees township NJ Montvale borough NJ Randolph township NJ Waldwick borough NJ Montville township NJ Raritan borough NJ Wall township NJ Moonachie borough NJ Readington township NJ Wallington borough NJ Moorestown township NJ Red Bank borough NJ Wanaque borough NJ Morris County NJ Ridgefield borough NJ Warren County NJ Morris Plains borough NJ Ridgefield Park village NJ Warren township NJ Morris township NJ Ridgewood village NJ Washington township NJ Morristown town NJ Ringwood borough NJ Watchung borough NJ Mount Arlington borough NJ River Edge borough NJ Waterford township NJ Mount Ephraim borough NJ River Vale township NJ Wayne township NJ Mount Holly township NJ Riverdale borough NJ Weehawken township NJ Mount Laurel township NJ Riverside township NJ Wenonah borough NJ Mount Olive township NJ Riverton borough NJ West Caldwell township NJ Mountain Lakes borough NJ Rochelle Park township NJ West Deptford township NJ Mountainside borough NJ Rockaway borough NJ West Long Branch borough NJ National Park borough NJ Rockaway township NJ West New York town NJ Neptune City borough NJ Rockleigh borough NJ West Orange township NJ Neptune township NJ Roseland borough NJ West Paterson borough NJ Netcong borough NJ Roselle borough NJ Westampton township NJ New Brunswick city NJ Roselle Park borough NJ Westfield town NJ New Milford borough NJ Roxbury township NJ Westville borough NJ New Providence borough NJ Rumson borough NJ Westwood borough NJ Newark city NJ Runnemede borough NJ Wharton borough NJ Newfield borough NJ Rutherford borough NJ Willingboro township NJ North Arlington borough NJ Saddle Brook township NJ Winfield township NJ North Bergen township NJ Saddle River borough NJ Winslow township NJ North Brunswick township NJ Salem County NJ Woodbridge township NJ North Caldwell township NJ Sayreville borough NJ Woodbury city NJ North Haledon borough NJ Scotch Plains township NJ Woodbury Heights borough NJ North Plainfield borough NJ Sea Bright borough NJ Woodcliff Lake borough NJ Northfield city NJ Sea Girt borough NJ Woodlynne borough NJ Northvale borough NJ Seaside Heights borough NJ Wood-Ridge borough NJ Norwood borough NJ Seaside Park borough NJ Wyckoff township NJ Nutley township NJ Secaucus town NM Bernalillo County NJ Oakland borough NJ Shamong township NM Corrales village NJ Oaklyn borough NJ Shrewsbury borough NM Dona Ana County NJ Ocean City city NJ Shrewsbury township NM Las Cruces city NJ Ocean County NJ Somerdale borough NM Los Ranchos de Albuquerque village NJ Ocean Gate borough NJ Somers Point city NM Mesilla town NJ Ocean township NJ Somerset County NM Rio Rancho city NJ Oceanport borough NJ Somerville borough NM Sandoval County NJ Old Bridge township NJ South Amboy city NM Santa Fe city NJ Old Tappan borough NJ South Belmar borough NM Santa Fe County NJ Oradell borough NJ South Bound Brook borough NM Sunland Park city NJ Palisades Park borough NJ South Brunswick township NY Albany city NJ Palmyra borough NJ South Hackensack township NY Albany County NJ Paramus borough NJ South Orange Village township NY Amherst town NJ Park Ridge borough NJ South Plainfield borough NY Amityville village NJ Parsippany-Troy Hills township NJ South River borough NY Ardsley village NJ Passaic city NJ South Toms River borough NY Ashland town NJ Passaic County NJ Spotswood borough NY Atlantic Beach village NJ Passaic township NJ Spring Lake borough NY Babylon town NJ Paterson city NJ Spring Lake Heights borough NY Babylon village NJ Paulsboro borough NJ Springfield township NY Baldwinsville village NJ Pennington borough NJ Stanhope borough NY Ballston town NJ Penns Grove borough NJ Stratford borough NY Barker town NJ Pennsauken township NJ Summit city NY Baxter Estates village NJ Pennsville township NJ Sussex County NY Bayville village NJ Pequannock township NJ Tabernacle township NY Beacon city NJ Perth Amboy city NJ Tavistock borough NY Bedford town NJ Phillipsburg town NJ Teaneck township NY Belle Terre village NJ Pine Beach borough NJ Tenafly borough NY Bellerose village NJ Pine Hill borough NJ Teterboro borough NY Bellport village NJ Pine Valley borough NJ Tinton Falls borough NY Bethlehem town NJ Piscataway township NJ Totowa borough NY Big Flats town NJ Pitman borough NJ Trenton city NY Binghamton city NJ Pittsgrove township NJ Union Beach borough NY Binghamton town NJ Plainfield city NJ Union City city NY Blasdell village NJ Pleasantville city NJ Union township NY Boston town NJ Pohatcong township NJ Upper Saddle River borough NY Briarcliff Manor village NJ Point Pleasant Beach borough NJ Upper township NY Brighton town NJ Point Pleasant borough NJ Ventnor City city NY Brightwaters village

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NY Bronxville village NY Grand View-on-Hudson village NY Menands village NY Brookhaven town NY Great Neck Estates village NY Mill Neck village NY Brookville village NY Great Neck Plaza village NY Mineola village NY Broome County NY Great Neck village NY Minoa village NY Brunswick town NY Greece town NY Monroe County NY Buchanan village NY Green Island village NY Montebello village NY Buffalo city NY Greenburgh town NY Montgomery town NY Camillus town NY Guilderland town NY Moreau town NY Camillus village NY Halfmoon town NY Mount Kisco village NY Carmel town NY Hamburg town NY Mount Pleasant town NY Cayuga Heights village NY Hamburg village NY Mount Vernon city NY Cedarhurst village NY Harrison village NY Munsey Park village NY Charlton town NY Hastings-on-Hudson village NY Muttontown village NY Cheektowaga town NY Haverstraw town NY New Castle town NY Chemung County NY Haverstraw village NY New Hartford town NY Chenango town NY Hempstead town NY New Hartford village NY Chestnut Ridge village NY Hempstead village NY New Hempstead village NY Chili town NY Henrietta town NY New Hyde Park village NY Cicero town NY Herkimer County NY New Rochelle city NY Clarence town NY Hewlett Bay Park village NY New Square village NY Clarkstown town NY Hewlett Harbor village NY New Windsor town NY Clay town NY Hewlett Neck village NY New York Mills village NY Clayville village NY Hillburn village NY Newburgh city NY Clifton Park town NY Horseheads town NY Newburgh town NY Clinton village NY Horseheads village NY Niagara County NY Cohoes city NY Hudson Falls village NY Niagara Falls city NY Colonie town NY Huntington Bay village NY Niagara town NY Colonie village NY Huntington town NY Niskayuna town NY Conklin town NY Hyde Park town NY North Castle town NY Cornwall on Hudson village NY Irondequoit town NY North Greenbush town NY Cornwall town NY Irvington village NY North Hempstead town NY Cortlandt town NY Island Park village NY North Hills village NY Croton-on-Hudson village NY Islandia village NY North Syracuse village NY De Witt town NY Islip town NY North Tarrytown village NY Deerfield town NY Ithaca city NY North Tonawanda city NY Depew village NY Ithaca town NY Northport village NY Dickinson town NY Johnson City village NY Nyack village NY Dobbs Ferry village NY Kenmore village NY Ogden town NY Dryden town NY Kensington village NY Old Brookville village NY Dutchess County NY Kent town NY Old Westbury village NY East Fishkill town NY Kings Point village NY Oneida County NY East Greenbush town NY Kingsbury town NY Onondaga County NY East Hills village NY Kirkland town NY Onondaga town NY East Rochester village NY Kirkwood town NY Orange County NY East Rockaway village NY La Grange town NY Orangetown town NY East Syracuse village NY Lackawanna city NY Orchard Park town NY East Williston village NY LaFayette town NY Orchard Park village NY Eastchester town NY Lake Grove village NY Oriskany village NY Elma town NY Lake Success village NY Ossining town NY Elmira city NY Lancaster town NY Ossining village NY Elmira Heights village NY Lancaster village NY Oswego County NY Elmira town NY Lansing town NY Owego town NY Elmsford village NY Lansing village NY Oyster Bay town NY Endicott village NY Larchmont village NY Paris town NY Erie County NY Lattingtown village NY Patchogue village NY Evans town NY Lawrence village NY Patterson town NY Fairport village NY Lee town NY Peekskill city NY Farmingdale village NY Lewiston town NY Pelham Manor village NY Fayetteville village NY Lewiston village NY Pelham town NY Fenton town NY Lindenhurst village NY Pelham village NY Fishkill town NY Liverpool village NY Pendleton town NY Fishkill village NY Lloyd Harbor village NY Penfield town NY Floral Park village NY Lloyd town NY Perinton town NY Flower Hill village NY Long Beach city NY Philipstown town NY Floyd town NY Lynbrook village NY Phoenix village NY Fort Edward town NY Lysander town NY Piermont village NY Fort Edward village NY Malta town NY Pittsford town NY Frankfort town NY Malverne village NY Pittsford village NY Freeport village NY Mamaroneck town NY Plandome Heights village NY Garden City village NY Mamaroneck village NY Plandome Manor village NY Gates town NY Manlius town NY Plandome village NY Geddes town NY Manlius village NY Pleasant Valley town NY Glen Cove city NY Manorhaven village NY Pleasantville village NY Glens Falls city NY Marcy town NY Poestenkill town NY Glenville town NY Massapequa Park village NY Pomona village NY Grand Island town NY Matinecock village NY Poospatuck Reservation

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NY Poquott village NY Wappinger town OH Brown township NY Port Chester village NY Wappingers Falls village OH Brownhelm township NY Port Dickinson village NY Warren County OH Brunswick city NY Port Jefferson village NY Washington County OH Brunswick Hills township NY Port Washington North village NY Waterford town OH Butler County NY Poughkeepsie city NY Waterford village OH Butler township NY Poughkeepsie town NY Watervliet city OH Campbell city NY Pound Ridge town NY Webster town OH Canfield city NY Putnam County NY Webster village OH Canfield township NY Putnam Valley town NY Wesley Hills village OH Canton city NY Queensbury town NY West Haverstraw village OH Canton township NY Ramapo town NY West Seneca town OH Carlisle township NY Rensselaer city NY Westbury village OH Carlisle village NY Rensselaer County NY Westchester County OH Centerville city NY Riverhead town NY Western town OH Chagrin Falls township NY Rochester city NY Wheatfield town OH Chagrin Falls village NY Rockville Centre village NY White Plains city OH Champion township NY Rome city NY Whitesboro village OH Chesapeake village NY Roslyn Estates village NY Whitestown town OH Cheviot city NY Roslyn Harbor village NY Williamsville village OH Chippewa township NY Roslyn village NY Williston Park village OH Cincinnati city NY Rotterdam town NY Woodsburgh village OH Clark County NY Russell Gardens village NY Yonkers city OH Clear Creek township NY Rye Brook village NY Yorktown town OH Clermont County NY Rye city NY Yorkville village OH Cleveland city NY Rye town OH Addyston village OH Cleveland Heights city NY Saddle Rock village OH Allen County OH Cleves village NY Salina town OH Allen township OH Clinton township NY Sands Point village OH Amberley village OH Coal Grove village NY Saratoga County OH Amelia village OH Coitsville township NY Scarsdale town OH American township OH Colerain township NY Scarsdale village OH Amherst city OH Columbia township NY Schaghticoke town OH Amherst township OH Concord township NY Schenectady city OH Anderson township OH Copley township NY Schenectady County OH Arlington Heights village OH Coventry township NY Schodack town OH Auglaize County OH Cridersville village NY Schroeppel town OH Aurora city OH Cross Creek township NY Schuyler town OH Austintown township OH Cuyahoga County NY Scotia village OH Avon city OH Cuyahoga Falls city NY Sea Cliff village OH Avon Lake city OH Cuyahoga Heights village NY Shoreham village OH Bainbridge township OH Deer Park city NY Sloan village OH Barberton city OH Deerfield township NY Sloatsburg village OH Batavia township OH Delaware County NY Smithtown town OH Bath township OH Delhi township NY Solvay village OH Bay Village city OH Doylestown village NY Somers town OH Beachwood city OH Dublin city NY South Floral Park village OH Beaver township OH Duchouquet township NY South Glens Falls village OH Beavercreek city OH East Cleveland city NY South Nyack village OH Beavercreek township OH Eastlake city NY Southampton town OH Bedford city OH Eaton township NY Southport town OH Bedford Heights city OH Elmwood Place village NY Spencerport village OH Bellaire city OH Elyria city NY Spring Valley village OH Bellbrook city OH Elyria township NY Stewart Manor village OH Belmont County OH Englewood city NY Stony Point town OH Belpre city OH Erie County NY Suffern village OH Belpre township OH Etna township NY Suffolk County OH Bentleyville village OH Euclid city NY Syracuse city OH Berea city OH Evendale village NY Tarrytown village OH Bethel township OH Fairborn city NY Thomaston village OH Bexley city OH Fairfax village NY Tioga County OH Blendon township OH Fairfield city NY Tompkins County OH Blue Ash city OH Fairfield County NY Tonawanda city OH Boardman township OH Fairfield township NY Tonawanda town OH Brady Lake village OH Fairlawn city NY Troy city OH Bratenahl village OH Fairport Harbor village NY Tuckahoe village OH Brecksville city OH Fairview Park city NY Ulster County OH Brice village OH Fayette township NY Union town OH Bridgeport village OH Forest Park city NY Upper Brookville village OH Brilliant village OH Fort Shawnee village NY Upper Nyack village OH Brimfield township OH Franklin city NY Utica city OH Broadview Heights city OH Franklin County NY Valley Stream village OH Brook Park city OH Franklin township NY Van Buren town OH Brookfield township OH Gahanna city NY Vestal town OH Brooklyn city OH Garfield Heights city NY Veteran town OH Brooklyn Heights village OH Geauga County NY Village of the Branch village OH Brookside village OH Genoa township

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OH German township OH Marble Cliff village OH Pease township OH Girard city OH Mariemont village OH Pepper Pike city OH Glendale village OH Martins Ferry city OH Perry township OH Glenwillow village OH Mason city OH Perrysburg city OH Golf Manor village OH Massillon city OH Perrysburg city OH Goshen township OH Maumee city OH Perrysburg township OH Grand River village OH Mayfield Heights city OH Pierce township OH Grandview Heights city OH Mayfield village OH Plain township OH Green township OH McDonald village OH Pleasant township OH Green village OH Mead township OH Poland township OH Greene County OH Medina County OH Poland village OH Greenhills village OH Mentor city OH Portage County OH Grove City city OH Mentor-on-the-Lake city OH Powell village OH Groveport village OH Meyers Lake village OH Prairie township OH Hamilton city OH Miami County OH Proctorville village OH Hamilton County OH Miami township OH Pultney township OH Hamilton township OH Miamisburg city OH Randolph township OH Hanging Rock village OH Middleburg Heights city OH Ravenna city OH Hanover township OH Middletown city OH Ravenna township OH Harbor View village OH Mifflin township OH Reading city OH Harrison township OH Milford city OH Reminderville village OH Hartville village OH Millbury village OH Reynoldsburg city OH Heath city OH Millville village OH Richfield township OH Highland Heights city OH Minerva Park village OH Richfield village OH Hilliard city OH Mingo Junction city OH Richland County OH Hills and Dales village OH Mogadore village OH Richmond Heights city OH Hinckley township OH Monclova township OH Riveredge township OH Holland village OH Monroe township OH Riverlea village OH Howland township OH Monroe village OH Riverside village OH Hubbard city OH Montgomery city OH Rocky River city OH Hubbard township OH Montgomery County OH Rome township OH Huber Heights city OH Moorefield township OH Ross township OH Hudson township OH Moraine city OH Rossford city OH Hudson village OH Moreland Hills village OH Russell township OH Independence city OH Mount Healthy city OH Russia township OH Ironton city OH Munroe Falls village OH Sagamore Hills township OH Island Creek township OH New Miami village OH Seven Hills city OH Jackson township OH New Middletown village OH Shadyside village OH Jefferson County OH New Rome village OH Shaker Heights city OH Jefferson township OH Newark city OH Sharon township OH Jerome township OH Newark township OH Sharonville city OH Kent city OH Newburgh Heights village OH Shawnee Hills village OH Kettering city OH Newton township OH Shawnee township OH Kirtland city OH Newtown village OH Sheffield Lake city OH Lake County OH Niles city OH Sheffield township OH Lake township OH Nimishillen township OH Sheffield village OH Lakeline village OH North Bend village OH Silver Lake village OH Lakemore village OH North Canton city OH Silverton city OH Lakewood city OH North College Hill city OH Solon city OH Lawrence County OH North Olmsted city OH South Amherst village OH Lawrence township OH North Randall village OH South Euclid city OH Lemon township OH North Ridgeville city OH South Point village OH Lexington village OH North Royalton city OH South Russell village OH Liberty township OH Northfield Center township OH Springboro city OH Licking County OH Northfield village OH Springdale city OH Licking township OH Northwood city OH Springfield city OH Lima city OH Norton city OH Springfield township OH Lima township OH Norwich township OH St. Bernard city OH Lincoln Heights city OH Norwood city OH St. Clair township OH Linndale village OH Oakwood city OH Stark County OH Lockland village OH Oakwood village OH Steubenville city OH Lorain city OH Obetz village OH Steubenville township OH Lorain County OH Ohio township OH Stow city OH Louisville city OH Olmsted Falls city OH Strongsville city OH Loveland city OH Olmsted township OH Struthers city OH Lowellville village OH Ontario village OH Suffield township OH Lucas County OH Orange township OH Sugar Bush Knolls village OH Lyndhurst city OH Orange village OH Sugar Creek township OH Macedonia city OH Oregon city OH Summit County OH Mad River township OH Ottawa County OH Sycamore township OH Madeira city OH Ottawa Hills village OH Sylvania city OH Madison township OH Painesville city OH Sylvania township OH Mahoning County OH Painesville township OH Symmes township OH Maineville village OH Palmyra township OH Tallmadge city OH Mansfield city OH Parma city OH Terrace Park village OH Maple Heights city OH Parma Heights city OH The Village of Indian Hill city

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OH Timberlake village OK Logan County PA Berks County OH Trenton city OK Midwest City city PA Bern township OH Trotwood city OK Moffett town PA Bethel Park borough OH Troy township OK Moore city PA Bethel township OH Trumbull County OK Mustang city PA Bethlehem city OH Truro township OK Nichols Hills city PA Bethlehem township OH Turtle Creek township OK Nicoma Park city PA Big Beaver borough OH Tuscarawas township OK Norman city PA Birdsboro borough OH Twinsburg city OK Oklahoma County PA Birmingham township OH Twinsburg township OK Osage County PA Blair County OH Union city OK Pottawatomie County PA Blair township OH Union County OK Rogers County PA Blakely borough OH Union township OK Sand Springs city PA Blawnox borough OH University Heights city OK Sequoyah County PA Boyertown borough OH Upper Arlington city OK Smith Village town PA Brackenridge borough OH Upper township OK Spencer city PA Braddock borough OH Urbancrest village OK The Village city PA Braddock Hills borough OH Valley View village OK Tulsa County PA Bradfordwoods borough OH Valleyview village OK Valley Brook town PA Brentwood borough OH Vandalia city OK Wagoner County PA Bridgeport borough OH Vermilion city OK Warr Acres city PA Bridgeville borough OH Vermilion township OK Woodlawn Park town PA Bridgewater borough OH Violet township OK Yukon city PA Brighton township OH Wadsworth city OR Central Point city PA Bristol borough OH Wadsworth township OR Columbia County PA Bristol township OH Waite Hill village OR Durham city PA Brookhaven borough OH Walbridge village OR Jackson County PA Brownstown borough OH Walton Hills village OR Keizer city PA Brownsville borough OH Warren city OR King City city PA Brownsville township OH Warren County OR Lane County PA Bryn Athyn borough OH Warren township OR Marion County PA Buckingham township OH Warrensville Heights city OR Maywood Park city PA Bucks County OH Warrensville township OR Medford city PA California borough OH Washington County OR Phoenix city PA Caln township OH Washington township OR Polk County PA Cambria County OH Wayne County OR Rainier city PA Camp Hill borough OH Wayne township OR Springfield city PA Canonsburg borough OH Weathersfield township OR Troutdale city PA Canton township OH Wells township OR Tualatin city PA Carbondale city OH West Carrollton City city OR Wood Village city PA Carbondale township OH West Milton village PA Abington township PA Carnegie borough OH Westerville city PA Adamsburg borough PA Carroll township OH Westlake city PA Alburtis borough PA Castle Shannon borough OH Whitehall city PA Aldan borough PA Catasauqua borough OH Whitewater township PA Aleppo township PA Cecil township OH Wickliffe city PA Aliquippa city PA Center township OH Willoughby city PA Allegheny County PA Centre County OH Willoughby Hills city PA Allegheny township PA Chalfant borough OH Willowick city PA Allen township PA Chalfont borough OH Wintersville village PA Allenport borough PA Charleroi borough OH Wood County PA Alsace township PA Charlestown township OH Woodlawn village PA Altoona city PA Chartiers township OH Woodmere village PA Ambler borough PA Cheltenham township OH Worthington city PA Ambridge borough PA Chester city OH Wyoming city PA Amwell township PA Chester County OH Youngstown city PA Antis township PA Chester Heights borough OK Arkoma town PA Antrim township PA Chester township OK Bethany city PA Archbald borough PA Cheswick borough OK Bixby city PA Arnold city PA Chippewa township OK Broken Arrow city PA Ashley borough PA Churchill borough OK Canadian County PA Aspinwall borough PA Clairton city OK Catoosa city PA Aston township PA Clarks Green borough OK Choctaw city PA Avalon borough PA Clarks Summit borough OK Cleveland County PA Avoca borough PA Clifton Heights borough OK Comanche County PA Baden borough PA Coal Center borough OK Creek County PA Baldwin borough PA Coatesville city OK Del City city PA Baldwin township PA Colebrookdale township OK Edmond city PA Beaver borough PA College township OK Forest Park town PA Beaver County PA Collegeville borough OK Hall Park town PA Beaver Falls city PA Collier township OK Harrah town PA Bell Acres borough PA Collingdale borough OK Jenks city PA Belle Vernon borough PA Columbia borough OK Jones town PA Bellevue borough PA Colwyn borough OK Lake Aluma town PA Ben Avon borough PA Concord township OK Lawton city PA Ben Avon Heights borough PA Conemaugh township OK Le Flore County PA Bensalem township PA Conestoga township

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PA Conewago township PA Emmaus borough PA Hummelstown borough PA Conshohocken borough PA Emsworth borough PA Hunker borough PA Conway borough PA Erie city PA Indiana township PA Coplay borough PA Erie County PA Ingram borough PA Coraopolis borough PA Etna borough PA Irwin borough PA Courtdale borough PA Exeter borough PA Ivyland borough PA Crafton borough PA Exeter township PA Jackson township PA Crescent township PA Export borough PA Jacobus borough PA Cumberland County PA Fairfield township PA Jeannette city PA Cumru township PA Fairview township PA Jefferson borough PA Daisytown borough PA Fallowfield township PA Jenkins township PA Dale borough PA Falls township PA Jenkintown borough PA Dallas borough PA Fallston borough PA Jermyn borough PA Dallas township PA Farrell city PA Jessup borough PA Dallastown borough PA Fayette City borough PA Johnstown city PA Darby borough PA Fayette County PA Juniata township PA Darby township PA Fell township PA Kenhorst borough PA Daugherty township PA Ferguson township PA Kennedy township PA Dauphin County PA Ferndale borough PA Kilbuck township PA Delaware County PA Findlay township PA Kingston borough PA Delmont borough PA Finleyville borough PA Kingston township PA Derry township PA Folcroft borough PA Koppel borough PA Dickson City borough PA Forest Hills borough PA Lackawanna County PA Donora borough PA Forks township PA Laflin borough PA Dormont borough PA Forty Fort borough PA Lancaster city PA Douglass township PA Forward township PA Lancaster County PA Dover borough PA Fountain Hill borough PA Lancaster township PA Dover township PA Fox Chapel borough PA Langhorne borough PA Downingtown borough PA Franconia township PA Langhorne Manor borough PA Doylestown borough PA Franklin borough PA Lansdale borough PA Doylestown township PA Franklin County PA Lansdowne borough PA Dravosburg borough PA Franklin Park borough PA Larksville borough PA Duboistown borough PA Franklin township PA Laurel Run borough PA Duncansville borough PA Frankstown township PA Laureldale borough PA Dunlevy borough PA Frazer township PA Lawrence County PA Dunmore borough PA Freedom borough PA Lawrence Park township PA Dupont borough PA Freemansburg borough PA Lebanon County PA Duquesne city PA Geistown borough PA Leesport borough PA Duryea borough PA Glassport borough PA Leet township PA East Allen township PA Glendon borough PA Leetsdale borough PA East Bradford township PA Glenfield borough PA Lehigh County PA East Brandywine township PA Glenolden borough PA Lehman township PA East Caln township PA Green Tree borough PA Lemoyne borough PA East Conemaugh borough PA Greensburg city PA Liberty borough PA East Coventry township PA Hallam borough PA Limerick township PA East Deer township PA Hampden township PA Lincoln borough PA East Fallowfield township PA Hampton township PA Lititz borough PA East Goshen township PA Hanover township PA Logan township PA East Hempfield township PA Harborcreek township PA Loganville borough PA East Lampeter township PA Harmar township PA London Britain township PA East Lansdowne borough PA Harmony township PA Londonderry township PA East McKeesport borough PA Harris township PA Lorain borough PA East Norriton township PA Harrisburg city PA Lower Allen township PA East Pennsboro township PA Harrison township PA Lower Alsace township PA East Petersburg borough PA Harveys Lake borough PA Lower Burrell city PA East Pikeland township PA Hatboro borough PA Lower Chichester township PA East Pittsburgh borough PA Hatfield borough PA Lower Frederick township PA East Rochester borough PA Hatfield township PA Lower Gwynedd township PA East Taylor township PA Haverford township PA Lower Heidelberg township PA East Vincent township PA Haysville borough PA Lower Macungie township PA East Washington borough PA Heidelberg borough PA Lower Makefield township PA East Whiteland township PA Hellam township PA Lower Merion township PA Easton city PA Hellertown borough PA Lower Moreland township PA Easttown township PA Hempfield township PA Lower Nazareth township PA Eastvale borough PA Hepburn township PA Lower Paxton township PA Economy borough PA Hermitage city PA Lower Pottsgrove township PA Eddystone borough PA Highspire borough PA Lower Providence township PA Edgewood borough PA Hilltown township PA Lower Salford township PA Edgeworth borough PA Hollidaysburg borough PA Lower Saucon township PA Edgmont township PA Homestead borough PA Lower Southampton township PA Edwardsville borough PA Homewood borough PA Lower Swatara township PA Elco borough PA Hopewell township PA Lower Yoder township PA Elizabeth borough PA Horsham township PA Loyalsock township PA Elizabeth township PA Houston borough PA Luzerne borough PA Ellport borough PA Hughestown borough PA Luzerne County PA Ellwood City borough PA Hulmeville borough PA Luzerne township

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PA Lycoming County PA North Franklin township PA Rostraver township PA Lycoming township PA North Huntingdon township PA Royalton borough PA Macungie borough PA North Irwin borough PA Royersford borough PA Madison borough PA North Londonderry township PA Rutledge borough PA Maidencreek township PA North Sewickley township PA Salem township PA Malvern borough PA North Strabane township PA Salisbury township PA Manchester township PA North Versailles township PA Scalp Level borough PA Manheim township PA North Wales borough PA Schuylkill township PA Manor borough PA North Whitehall township PA Schwenksville borough PA Manor township PA North York borough PA Scott township PA Marcus Hook borough PA Northampton borough PA Scranton city PA Marple township PA Northampton County PA Sewickley borough PA Marshall township PA Northampton township PA Sewickley Heights borough PA Marysville borough PA Norwood borough PA Sewickley Hills borough PA Mayfield borough PA Oakmont borough PA Sewickley township PA McCandless township PA O’Hara township PA Shaler township PA McKean township PA Ohio township PA Sharon city PA McKees Rocks borough PA Old Forge borough PA Sharon Hill borough PA McKeesport city PA Old Lycoming township PA Sharpsburg borough PA Mechanicsburg borough PA Olyphant borough PA Sharpsville borough PA Media borough PA Ontelaunee township PA Shenango township PA Mercer County PA Osborne borough PA Shillington borough PA Middle Taylor township PA Paint borough PA Shiremanstown borough PA Middletown borough PA Paint township PA Silver Spring township PA Middletown township PA Palmer township PA Sinking Spring borough PA Millbourne borough PA Palmyra borough PA Skippack township PA Millcreek township PA Parkside borough PA Somerset County PA Millersville borough PA Patterson Heights borough PA Souderton borough PA Millvale borough PA Patterson township PA South Abington township PA Modena borough PA Patton township PA South Coatesville borough PA Mohnton borough PA Paxtang borough PA South Fayette township PA Monaca borough PA Penbrook borough PA South Greensburg borough PA Monessen city PA Penn borough PA South Hanover township PA Monongahela city PA Penn Hills township PA South Heidelberg township PA Monroe township PA Penn township PA South Heights borough PA Montgomery County PA Penndel borough PA South Huntingdon township PA Montgomery township PA Pennsbury Village borough PA South Park township PA Montoursville borough PA Pequea township PA South Pymatuning township PA Moon township PA Perkiomen township PA South Strabane township PA Moosic borough PA Perry County PA South Whitehall township PA Morrisville borough PA Perry township PA South Williamsport borough PA Morton borough PA Peters township PA Southmont borough PA Mount Lebanon township PA Phoenixville borough PA Southwest Greensburg borough PA Mount Oliver borough PA Pine township PA Speers borough PA Mount Penn borough PA Pitcairn borough PA Spring City borough PA Mountville borough PA Pittsburgh city PA Spring Garden township PA Muhlenberg township PA Pittston city PA Spring township PA Munhall borough PA Pittston township PA Springdale borough PA Municipality of Monroeville borough PA Plains township PA Springdale township PA Municipality of Murrysville borough PA Pleasant Hills borough PA Springettsbury township PA Nanticoke city PA Plum borough PA Springfield township PA Narberth borough PA Plymouth borough PA St. Lawrence borough PA Nether Providence township PA Plymouth township PA State College borough PA Neville township PA Port Vue borough PA Steelton borough PA New Brighton borough PA Potter township PA Stockdale borough PA New Britain borough PA Pottstown borough PA Stonycreek township PA New Britain township PA Pringle borough PA Stowe township PA New Cumberland borough PA Prospect Park borough PA Sugar Notch borough PA New Eagle borough PA Pulaski township PA Summit township PA New Galilee borough PA Radnor township PA Susquehanna township PA New Garden township PA Rankin borough PA Sutersville borough PA New Hanover township PA Ransom township PA Swarthmore borough PA New Kensington city PA Reading city PA Swatara township PA New Sewickley township PA Red Lion borough PA Swissvale borough PA New Stanton borough PA Reserve township PA Swoyersville borough PA Newell borough PA Richland township PA Tarentum borough PA Newport township PA Ridley Park borough PA Taylor borough PA Newton township PA Ridley township PA Telford borough PA Newtown borough PA Robinson township PA Temple borough PA Newtown township PA Rochester borough PA Thornburg borough PA Norristown borough PA Rochester township PA Thornbury township PA North Belle Vernon borough PA Rockledge borough PA Throop borough PA North Braddock borough PA Roscoe borough PA Tinicum township PA North Catasauqua borough PA Rose Valley borough PA Towamencin township PA North Charleroi borough PA Ross township PA Trafford borough PA North Coventry township PA Rosslyn Farms borough PA Trainer borough

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PA Trappe borough PA Whitehall township RI East Providence city PA Tredyffrin township PA Whitemarsh township RI Glocester town PA Tullytown borough PA Whitpain township RI Jamestown town PA Turtle Creek borough PA Wilkes-Barre city RI Johnston town PA Union township PA Wilkes-Barre township RI Lincoln town PA Upland borough PA Wilkins township RI Middletown town PA Upper Allen township PA Wilkinsburg borough RI Newport city PA Upper Chichester township PA Williams township RI Newport County PA Upper Darby township PA Williamsport city RI North Kingstown town PA Upper Dublin township PA Willistown township RI North Providence town PA Upper Gwynedd township PA Wilmerding borough RI North Smithfield town PA Upper Leacock township PA Wilson borough RI Pawtucket city PA Upper Macungie township PA Windber borough RI Portsmouth town PA Upper Makefield township PA Windsor borough RI Providence city PA Upper Merion township PA Windsor township RI Providence County PA Upper Milford township PA Worcester township RI Scituate town PA Upper Moreland township PA Wormleysburg borough RI Smithfield town PA Upper Pottsgrove township PA Wrightsville borough RI Tiverton town PA Upper Providence township PA Wyoming borough RI Warren town PA Upper Saucon township PA Wyomissing borough RI Warwick city PA Upper Southampton township PA Wyomissing Hills borough RI Washington County PA Upper St. Clair township PA Yardley borough RI West Greenwich town PA Upper Yoder township PA Yatesville borough RI West Warwick town PA Uwchlan township PA Yeadon borough RI Woonsocket city PA Valley township PA Yoe borough SC Aiken city PA Vanport township PA York city SC Aiken County PA Verona borough PA York County SC Anderson city PA Versailles borough PA York township SC Anderson County PA Wall borough PA Youngwood borough SC Arcadia Lakes town PA Warminster township PR Aibonita SC Berkeley County PA Warrington township PR Anasco SC Burnettown town PA Warrior Run borough PR Aquada SC Cayce city PA Warwick township PR Aquadilla SC Charleston city PA Washington city PR Aquas Buenas SC Charleston County PA Washington County PR Arecibo SC City View town PA Washington township PR Bayamon SC Columbia city PA Wayne township PR Cabo Rojo SC Cowpens town PA Wernersville borough PR Caguas SC Darlington County PA Wesleyville borough PR Camuy SC Dorchester County PA West Bradford township PR Canovanas SC Edgefield County PA West Brownsville borough PR Catano SC Florence city PA West Chester borough PR Cayey SC Florence County PA West Conshohocken borough PR Cidra SC Folly Beach city PA West Deer township PR Dorado SC Forest Acres city PA West Earl township PR Guaynabo SC Fort Mill town PA West Easton borough PR Gurabo SC Georgetown County PA West Elizabeth borough PR Hatillo SC Goose Creek city PA West Fairview borough PR Hormigueros SC Hanahan city PA West Goshen township PR Humacao SC Horry County PA West Hanover township PR Juncos SC Irmo town PA West Hempfield township PR Las Piedras SC Isle of Palms city PA West Homestead borough PR Loiza SC Lexington County PA West Lampeter township PR Manati SC Lincolnville town PA West Lawn borough PR Mayaguez SC Mount Pleasant town PA West Manchester township PR Moca SC Myrtle Beach city PA West Mayfield borough PR Naguabo SC North Augusta city PA West Middlesex borough PR Naranjito SC North Charleston city PA West Mifflin borough PR Penuelas SC Pickens County PA West Newton borough PR Ponce SC Pineridge town PA West Norriton township PR Rio Grande SC Quinby town PA West Pikeland township PR San German SC Rock Hill city PA West Pittston borough PR San Lorenzo SC South Congaree town PA West Pottsgrove township PR Toa Alta SC Spartanburg city PA West Reading borough PR Toa Baja SC Spartanburg County PA West Taylor township PR Trujillo Alto SC Springdale town PA West View borough PR Vega Alta SC Sullivan’s Island town PA West Whiteland township PR Vega Baja SC Summerville town PA West Wyoming borough PR Yabucao SC Sumter city PA West York borough RI Barrington town SC Sumter County PA Westmont borough RI Bristol town SC Surfside Beach town PA Westmoreland County RI Burrillville town SC West Columbia city PA Westtown township RI Central Falls city SC York County PA Wheatland borough RI Coventry town SD Big Sioux township PA Whitaker borough RI Cranston city SD Central Pennington unorg. PA White Oak borough RI Cumberland town SD Lincoln County PA White township RI East Greenwich town SD Mapleton township

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SD Minnehaha County TX Brazos County TX Hunters Creek Village city SD North Sioux City city TX Brookside Village city TX Hurst city SD Pennington County TX Brownsville city TX Hutchins city SD Rapid City city TX Bryan city TX Impact town SD Split Rock township TX Buckingham town TX Jacinto City city SD Union County TX Bunker Hill Village city TX Jefferson County SD Wayne township TX Cameron County TX Jersey Village city TN Alcoa city TX Carrollton city TX Johnson County TN Anderson County TX Castle Hills city TX Jones County TN Bartlett town TX Cedar Hill city TX Katy city TN Belle Meade city TX Cedar Park city TX Kaufman County TN Berry Hill city TX Chambers County TX Keller city TN Blount County TX Cibolo city TX Kemah city TN Brentwood city TX Clear Lake Shores city TX Kennedale city TN Bristol city TX Clint town TX Killeen city TN Carter County TX Cockrell Hill city TX Kirby city TN Church Hill town TX College Station city TX Kleberg County TN Clarksville city TX Colleyville city TX La Marque city TN Collegedale city TX Collin County TX La Porte city TN Davidson County TX Comal County TX Lacy-Lakeview city TN East Ridge city TX Combes town TX Lake Dallas city TN Elizabethton city TX Converse city TX Lake Worth city TN Farragut town TX Copperas Cove city TX Lakeside City town TN Forest Hills city TX Corinth town TX Lakeside town TN Germantown city TX Coryell County TX Lampasas County TN Goodlettsville city TX Crowley city TX Lancaster city TN Hamilton County TX Dallas County TX League City city TN Hawkins County TX Dalworthington Gardens city TX Leander city TN Hendersonville city TX Deer Park city TX Leon Valley city TN Jackson city TX Denison city TX Lewisville city TN Johnson City city TX Denton city TX Live Oak city TN Jonesborough town TX Denton County TX Longview city TN Kingsport city TX DeSoto city TX Lubbock County TN Knox County TX Dickinson city TX Lumberton city TN Lakesite city TX Donna city TX Martin County TN Lakewood city TX Double Oak town TX McAllen city TN Lookout Mountain town TX Duncanville city TX McLennan County TN Loudon County TX Ector County TX Meadows city TN Madison County TX Edgecliff village TX Midland city TN Maryville city TX Edinburg city TX Midland County TN Montgomery County TX El Lago city TX Mission city TN Mount Carmel town TX El Paso County TX Missouri City city TN Mount Juliet city TX Ellis County TX Montgomery County TN Oak Hill city TX Euless city TX Morgan’s Point city TN Red Bank city TX Everman city TX Nash city TN Ridgeside city TX Farmers Branch city TX Nassau Bay city TN Rockford city TX Flower Mound town TX Nederland city TN Shelby County TX Forest Hill city TX Nolanville city TN Signal Mountain town TX Fort Bend County TX North Richland Hills city TN Soddy-Daisy city TX Friendswood city TX Northcrest town TN Sullivan County TX Galena Park city TX Nueces County TN Sumner County TX Galveston city TX Odessa city TN Washington County TX Galveston County TX Olmos Park city TN Williamson County TX Grand Prairie city TX Palm Valley town TN Wilson County TX Grapevine city TX Palmview city TX Addison city TX Grayson County TX Pantego town TX Alamo city TX Gregg County TX Parker County TX Alamo Heights city TX Groves city TX Pearland city TX Allen city TX Guadalupe County TX Pflugerville city TX Archer County TX Haltom City city TX Pharr city TX Azle city TX Hardin County TX Piney Point Village city TX Balch Springs city TX Harker Heights city TX Port Arthur city TX Balcones Heights city TX Harlingen city TX Port Neches city TX Bayou Vista village TX Harrison County TX Portland city TX Baytown city TX Hedwig Village city TX Potter County TX Bedford city TX Hewitt city TX Primera town TX Bell County TX Hickory Creek town TX Randall County TX Bellaire city TX Hidalgo County TX Richardson city TX Bellmead city TX Highland Park town TX Richland Hills city TX Belton city TX Highland Village city TX River Oaks city TX Benbrook city TX Hill Country Village city TX Robinson city TX Beverly Hills city TX Hilshire Village city TX Rockwall city TX Bexar County TX Hitchcock city TX Rockwall County TX Blue Mound city TX Hollywood Park town TX Rollingwood city TX Bowie County TX Howe town TX Rose Hill Acres city TX Brazoria County TX Humble city TX Rowlett city

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TX Sachse city UT Logan city VA Weber City town TX Saginaw city UT Mapleton city VA Williamsburg city TX San Angelo city UT Midvale city VA York County TX San Benito city UT Millville city VT Burlington city TX San Juan city UT Murray city VT Chittenden County TX San Patricio County UT North Logan city VT Colchester town TX Sansom Park city UT North Ogden city VT Essex Junction village TX Santa Fe city UT North Salt Lake city VT Essex town TX Schertz city UT Ogden city VT Shelburne town TX Seabrook city UT Orem city VT South Burlington city TX Seagoville city UT Pleasant Grove city VT Williston town TX Selma city UT Pleasant View city VT Winooski city TX Shavano Park city UT Providence city WA Algona city TX Sherman city UT Provo city WA Auburn city TX Shoreacres city UT River Heights city WA Beaux Arts Village town TX Smith County UT Riverdale city WA Bellevue city TX Socorro town UT Riverton city WA Bellingham city TX South Houston city UT Roy city WA Benton County TX Southside Place city UT Sandy city WA Bonney Lake city TX Spring Valley city UT Smithfield city WA Bothell city TX Stafford town UT South Jordan city WA Bremerton city TX Sugar Land city UT South Ogden city WA Brier city TX Sunset Valley city UT South Salt Lake city WA Clyde Hill town TX Tarrant County UT South Weber city WA Cowlitz County TX Taylor County UT Springville city WA Des Moines city TX Taylor Lake Village city UT Sunset city WA DuPont city TX Temple city UT Syracuse city WA Edmonds city TX Terrell Hills city UT Uintah town WA Everett city TX Texarkana city UT Utah County WA Fife city TX Texas City city UT Washington Terrace city WA Fircrest town TX Tom Green County UT Weber County WA Franklin County TX Travis County UT West Bountiful city WA Gig Harbor city TX Tye town UT West Jordan city WA Hunts Point town TX Tyler city UT West Point city WA Issaquah city TX Universal City city UT West Valley City city WA Kelso city TX University Park city UT Woods Cross city WA Kennewick city TX Victoria city VA Albemarle County WA Kent city TX Victoria County VA Alexandria city WA Kirkland city TX Wake Village city VA Amherst County WA Kitsap County TX Waller County VA Bedford County WA Lacey city TX Watauga city VA Botetourt County WA Lake Forest Park city TX Webb County VA Bristol city WA Longview city TX Webster city VA Campbell County WA Lynnwood city TX Weslaco city VA Charlottesville city WA Marysville city TX West Lake Hills city VA Colonial Heights city WA Medina city TX West University Place city VA Danville city WA Mercer Island city TX Westover Hills town VA Dinwiddie County WA Mill Creek city TX Westworth village VA Fairfax city WA Millwood town TX White Oak city VA Falls Church city WA Milton city TX White Settlement city VA Fredericksburg city WA Mountlake Terrace city TX Wichita County VA Gate City town WA Mukilteo city TX Wichita Falls city VA Gloucester County WA Normandy Park city TX Williamson County VA Hanover County WA Olympia city TX Wilmer city VA Herndon town WA Pacific city TX Windcrest city VA Hopewell city WA Pasco city TX Woodway city VA James City County WA Port Orchard city UT American Fork city VA Loudoun County WA Puyallup city UT Bluffdale city VA Lynchburg city WA Redmond city UT Bountiful city VA Manassas city WA Renton city UT Cache County VA Manassas Park city WA Richland city UT Cedar Hills town VA Occoquan town WA Ruston town UT Centerville city VA Petersburg city WA Selah city UT Clearfield city VA Pittsylvania County WA Steilacoom town UT Clinton city VA Poquoson city WA Sumner city UT Davis County VA Prince George County WA Thurston County UT Draper city VA Richmond city WA Tukwila city UT Farmington city VA Roanoke city WA Tumwater city UT Farr West city VA Roanoke County WA Union Gap city UT Fruit Heights city VA Salem city WA Vancouver city UT Harrisville city VA Scott County WA West Richland city UT Highland city VA Spotsylvania County WA Whatcom County UT Hyde Park city VA Stafford County WA Woodway city UT Kaysville city VA Suffolk city WA Yakima city UT Layton city VA Vienna town WA Yakima County UT Lehi city VA Vinton town WA Yarrow Point town UT Lindon city VA Washington County WI Algoma town

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WI Allouez village WI La Crosse County WI Vernon town WI Altoona city WI La Prairie town WI Washington County WI Appleton city WI Lafayette town WI Washington town WI Ashwaubenon village WI Lannon village WI Waukesha city WI Bayside village WI Lima town WI Waukesha County WI Bellevue town WI Lisbon town WI Waukesha town WI Beloit city WI Little Chute village WI Wausau city WI Beloit town WI Madison town WI Wauwatosa city WI Big Bend village WI Maple Bluff village WI West Allis city WI Black Wolf town WI Marathon County WI West Milwaukee village WI Blooming Grove town WI McFarland village WI Weston town WI Brookfield city WI Medary town WI Westport town WI Brookfield town WI Menasha city WI Wheaton town WI Brown County WI Menasha town WI Whitefish Bay village WI Menomonee Falls village WI Brown Deer village WI Wilson town WI Brunswick town WI Mequon city WI Wind Point village WI Buchanan town WI Middleton city WI Winnebago County WI Burke town WI Middleton town WV Bancroft town WI Butler village WI Monona city WI Caledonia town WI Mount Pleasant town WV Barboursville village WI Calumet County WI Muskego city WV Belle town WI Campbell town WI Neenah city WV Benwood city WI Cedarburg city WI Neenah town WV Berkeley County WI Cedarburg town WI Nekimi town WV Bethlehem village WI Chippewa County WI New Berlin city WV Brooke County WI Chippewa Falls city WI North Bay village WV Cabell County WI Clayton town WI Norway town WV Cedar Grove town WI Combined Locks village WI Oak Creek city WV Ceredo city WI Cudahy city WI Onalaska city WV Charleston city WI Dane County WI Onalaska town WV Chesapeake town WI De Pere city WI Oshkosh city WV Clearview village WI De Pere town WI Oshkosh town WV Dunbar city WI Delafield town WI Outagamie County WV East Bank town WI Douglas County WI Ozaukee County WV Follansbee city WI Dunn town WI Pewaukee town WV Glasgow town WI Eagle Point town WI Pewaukee village WV Glen Dale city WI Eau Claire city WI Pleasant Prairie town WV Hancock County WI Eau Claire County WI Pleasant Prairie village WV Huntington city WI Elm Grove village WI Racine city WV Hurricane city WI Elmwood Park village WI Racine County WV Kanawha County WI Fitchburg city WI Rib Mountain town WV Kenova city WI Fox Point village WI River Hills village WV Marmet city WI Franklin city WI Rock County WV Marshall County WI Germantown town WI Rock town WV McMechen city WI Germantown village WI Rothschild village WV Mineral County WI Salem town WI Glendale city WV Moundsville city WI Grafton town WI Schofield city WV Nitro city WI Grafton village WI Scott town WV North Hills town WI Grand Chute town WI Sheboygan city WI Green Bay city WI Sheboygan County WV Ohio County WI Greendale village WI Sheboygan Falls city WV Parkersburg city WI Greenfield city WI Sheboygan Falls town WV Poca town WI Greenville town WI Sheboygan town WV Putnam County WI Hales Corners village WI Shelby town WV Ridgeley town WI Hallie town WI Shorewood Hills village WV South Charleston city WI Harmony town WI Shorewood village WV St. Albans city WI Harrison town WI Somers town WV Triadelphia town WI Hobart town WI South Milwaukee city WV Vienna city WI Holmen village WI St. Francis city WV Wayne County WI Howard village WI Stettin town WV Weirton city WI Janesville city WI Sturtevant village WV Wheeling city WI Janesville town WI Superior city WV Wood County WI Kaukauna city WI Superior village WY Casper city WI Kenosha city WI Sussex village WY Cheyenne city WI Kenosha County WI Thiensville village WY Evansville town WI Kimberly village WI Turtle town WY Laramie County WI Kohler village WI Union town WY Mills town WI La Crosse city WI Vandenbroek town WY Natrona County

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Appendix 7 of Preamble— CA Ridgecrest city IL Jacksonville city Governmental Entities (Located Outside CA Sanger city IL Macomb city of an Urbanized Area) That Must Be CA Santa Paula city IL Mattoon city Examined By the NPDES Permitting CA Selma city IL Mount Vernon city CA South Lake Tahoe city IL Ottawa city Authority for Potential Designation CA Temecula city IL Pontiac city Under § 123.35(b)(2) CA Tracy city IL Quincy city (All listed entities have a population of at CA Tulare city IL Rantoul village least 10,000 and a population density of at CA Turlock city IL Sterling city least 1,000. A listed entity would only be CA Ukiah city IL Streator city potentially designated if it operates a small CA Wasco city IL Taylorville city MS4. See § 122.26(b)(16) for the definition of CA Woodland city IL Woodstock city a small MS4.) CO Canon City city IN Bedford city (This list does not include all operators of CO Durango city IN Columbus city small MS4s that may be designated by the CO Lafayette city IN Crawfordsville city NPDES permitting authority. Operators of CO Louisville city IN Frankfort city small MS4s in areas with populations below CO Loveland city IN Franklin city 10,000 and densities below 1,000 may also be CO Sterling city IN Greenfield city designated but examination of them is not FL Bartow city IN Huntington city required. Also, entities such as military FL Belle Glade city IN Jasper city bases, large hospitals, prison complexes, FL De Land city IN La Porte city universities, sewer districts, and highway FL Eustis city IN Lebanon city departments that operate a small MS4 in an FL Haines City city IN Logansport city area listed here, or in an area otherwise FL Key West city IN Madison city designated by the NPDES permitting FL Leesburg city IN Marion city authority, may be designated and become FL Palatka city IN Martinsville city subject to permitting regulations.) (Source: FL Plant City city IN Michigan City city 1990 Census of Population and Housing, U.S. FL St. Augustine city IN New Castle city Bureau of the Census. This list is subject to FL St. Cloud city IN Noblesville city change with the Decennial Census) GA Americus city IN Peru city GA Carrollton city IN Plainfield town AL Daphne city GA Cordele city IN Richmond city AL Jacksonville city GA Dalton city IN Seymour city AL Selma city GA Dublin city IN Shelbyville city AR Arkadelphia city GA Griffin city IN Valparaiso city AR Benton city GA Hinesville city IN Vincennes city AR Blytheville city GA Moultrie city IN Wabash city AR Conway city GA Newnan city IN Warsaw city AR El Dorado city IN Washington city AR Hot Springs city GA Statesboro city AR Magnolia city GA Thomasville city KS Arkansas City city AR Rogers city GA Tifton city KS Atchison city AR Searcy city GA Valdosta city KS Coffeyville city AR Stuttgart city GA Waycross city KS Derby city AZ Douglas city IA Ames city KS Dodge City city CA Arcata city IA Ankeny city KS El Dorado city CA Arroyo Grande city IA Boone city KS Emporia city CA Atwater city IA Burlington city KS Garden City city CA Auburn city IA Fort Dodge city KS Great Bend city CA Banning city IA Fort Madison city KS Hays city CA Brawley city IA Indianola city KS Hutchinson city CA Calexico city IA Keokuk city KS Junction City city CA Clearlake city IA Marshalltown city KS Leavenworth city CA Corcoran city IA Mason City city KS Liberal city CA Delano city IA Muscatine city KS Manhattan city CA Desert Hot Springs city IA Newton city KS McPherson city CA Dinuba city IA Oskaloosa city KS Newton city CA Dixon city IA Ottumwa city KS Ottawa city CA El Centro city IA Spencer city KS Parsons city CA El Paso de Robles (Paso Robles) city ID Caldwell city KS Pittsburg city CA Eureka city ID Coeur d’Alene city KS Salina city CA Fillmore city ID Lewiston city KS Winfield city CA Gilroy city ID Moscow city KY Bowling Green city CA Grover City city ID Nampa city KY Danville city CA Hanford city ID Rexburg city KY Frankfort city CA Hollister city ID Twin Falls city KY Georgetown city CA Lemoore city IL Belvidere city KY Glasgow city CA Los Banos city IL Canton city KY Hopkinsville city CA Madera city IL Carbondale city KY Madisonville city CA Manteca city IL Centralia city KY Middlesborough city CA Oakdale city IL Charleston city KY Murray city CA Oroville city IL Danville city KY Nicholasville city CA Paradise town IL De Kalb city KY Paducah city CA Petaluma city IL Dixon city KY Radcliff city CA Porterville city IL Effingham city KY Richmond city CA Red Bluff city IL Freeport city KY Somerset city CA Reedley city IL Galesburg city KY Winchester city

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LA Abbeville city MS Indianola city NY Kingston city LA Bastrop city MS Laurel city NY Lockport city LA Bogalusa city MS McComb city NY Massena village LA Crowley city MS Meridian city NY Middletown city LA Eunice city MS Natchez city NY Ogdensburg city LA Hammond city MS Starkville city NY Olean city LA Jennings city MS Vicksburg city NY Oneonta city LA Minden city MS Yazoo City city NY Oswego city LA Morgan City city MT Bozeman city NY Plattsburgh city LA Natchitoches city MT Havre city NY Potsdam village LA New Iberia city MT Helena city NY Watertown city LA Opelousas city MT Kalispell city OH Alliance city LA Ruston city NC Albemarle city OH Ashland city LA Thibodaux city NC Asheboro city OH Ashtabula city MA Amherst town NC Boone town OH Athens city MA Clinton town NC Eden city OH Bellefontaine city MA Milford town NC Elizabeth City city OH Bowling Green city MA Newburyport city NC Havelock city OH Bucyrus city MD Aberdeen town NC Henderson city OH Cambridge city MD Cambridge city NC Kernersville town OH Chillicothe city MD Salisbury city NC Kinston city OH Circleville city MD Westminster city NC Laurinburg city OH Coshocton city ME Waterville city NC Lenoir city OH Defiance city MI Adrian city NC Lexington city OH Delaware city MI Albion city NC Lumberton city OH Dover city MI Alpena city NC Monroe city OH East Liverpool city MI Big Rapids city NC New Bern city OH Findlay city MI Cadillac city NC Reidsville city OH Fostoria city MI Escanaba city NC Roanoke Rapids city OH Fremont city MI Grand Haven city NC Salisbury city OH Galion city MI Marquette city NC Sanford city OH Greenville city MI Midland city NC Shelby city OH Lancaster city MI Monroe city NC Statesville city OH Lebanon city MI Mount Pleasant city NC Tarboro town OH Marietta city MI Owosso city NC Wilson city OH Marion city MI Sturgis city ND Dickinson city OH Medina city MI Traverse City city ND Jamestown city OH Mount Vernon city MN Albert Lea city ND Minot city OH New Philadelphia city MN Austin city ND Williston city OH Norwalk city MN Bemidji city NE Beatrice city OH Oxford city MN Brainerd city NE Columbus city OH Piqua city MN Faribault city NE Fremont city OH Portsmouth city MN Fergus Falls city NE Grand Island city OH Salem city MN Hastings city NE Hastings city OH Sandusky city MN Hutchinson city NE Kearney city OH Sidney city MN Mankato city NE Norfolk city OH Tiffin city MN Marshall city NE North Platte city OH Troy city MN New Ulm city NE Scottsbluff city OH Urbana city MN North Mankato city NJ East Windsor township OH Washington city MN Northfield city NJ Plainsboro township OH Wilmington city MN Owatonna city NJ Bridgeton city OH Wooster city MN Stillwater city NJ Princeton borough OH Xenia city MN Willmar city NM Alamogordo city OH Zanesville city MN Winona city NM Artesia city OK Ada city MO Cape Girardeau city NM Clovis city OK Altus city MO Farmington city NM Deming city OK Bartlesville city MO Hannibal city NM Farmington city OK Chickasha city MO Jefferson City city NM Gallup city OK Claremore city MO Kennett city NM Hobbs city OK McAlester city MO Kirksville city NM Las Vegas city OK Miami city MO Marshall city NM Portales city OK Muskogee city MO Maryville city NM Roswell city OK Okmulgee city MO Poplar Bluff city NM Silver City town OK Owasso city MO Rolla city NV Elko city OK Ponca City city MO Sedalia city NY Amsterdam city OK Stillwater city MO Sikeston city NY Auburn city OK Tahlequah city MO Warrensburg city NY Batavia city OK Weatherford city MO Washington city NY Canandaigua city OR Albany city MS Brookhaven city NY Corning city OR Ashland city MS Canton city NY Cortland city OR Astoria city MS Clarksdale city NY Dunkirk city OR Bend city MS Cleveland city NY Fredonia village OR City of the Dalles city MS Columbus city NY Fulton city OR Coos Bay city MS Greenville city NY Geneva city OR Corvallis city MS Greenwood city NY Gloversville city OR Grants Pass city MS Grenada city NY Jamestown city OR Hermiston city

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OR Klamath Falls city TX Cleburne city WA Oak Harbor city OR La Grande city TX Conroe city WA Port Angeles city OR Lebanon city TX Coppell city WA Pullman city OR McMinnville city TX Corsicana city WA Sunnyside city OR Newberg city TX Del Rio city WA Walla Walla city OR Pendleton city TX Dumas city WA Wenatchee city OR Roseburg city TX Eagle Pass city WI Beaver Dam city OR Woodburn city TX El Campo city WI Fond du Lac city PA Berwick borough TX Gainesville city WI Fort Atkinson city PA Bloomsburg town TX Gatesville city WI Manitowoc city PA Butler city TX Georgetown city WI Marinette city PA Carlisle borough TX Henderson city WI Marshfield city PA Chambersburg borough TX Hereford city WI Menomonie city PA Ephrata borough TX Huntsville city WI Monroe city PA Hanover borough TX Jacksonville city WI Oconomowoc city PA Hazleton city TX Kerrville city WI Stevens Point city PA Indiana borough TX Kingsville city WI Sun Prairie city PA Lebanon city TX Lake Jackson city WI Two Rivers city PA Meadville city TX Lamesa city WI Watertown city PA New Castle city TX Levelland city WI West Bend city PA Oil City city TX Lufkin city WI Whitewater city PA Pottsville city TX Mercedes city WI Wisconsin Rapids city PA Sunbury city TX Mineral Wells city WV Beckley city PA Uniontown city TX Mount Pleasant city WV Bluefield city PA Warren city TX Nacogdoches city WV Clarksburg city RI Narragansett town TX New Braunfels city WV Fairmont city SC Clemson city TX Palestine city WV Martinsburg city SC Easley city TX Pampa city WV Morgantown city SC Gaffney city TX Pecos city WY Evanston city SC Greenwood city TX Plainview city WY Gillette city SC Newberry town TX Port Lavaca city WY Green River city SC Orangeburg city TX Robstown city WY Laramie city SD Aberdeen city TX Rosenberg city WY Rock Springs city SD Brookings city TX Round Rock city WY Sheridan city SD Huron city TX San Marcos city SD Mitchell city TX Seguin city For the reasons set forth in the SD Vermillion city TX Snyder city preamble, chapter I of title 40 of the SD Watertown city TX Stephenville city Code of Federal Regulations is amended SD Yankton city TX Sweetwater city as follows: TN Brownsville city TX Taylor city TN Cleveland city TX The Colony city PART 9ÐOMB APPROVALS UNDER TN Collierville town TX Uvalde city THE PAPERWORK REDUCTION ACT TN Cookeville city TX Vernon city TN Dyersburg city TX Vidor city 1. The authority citation for part 9 TN Greeneville town UT Brigham City city continues to read as follows: TN Lawrenceburg city UT Cedar City city Authority: 7 U.S.C. 135 et seq., 136–136y; TN McMinnville city UT Spanish Fork city 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; TN Millington city UT Tooele city 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 TN Morristown city VA Blacksburg town U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, TN Murfreesboro city VA Christiansburg town 1321, 1326, 1330, 1342, 1344, 1345 (d) and TN Shelbyville city VA Front Royal town (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, TN Springfield city VA Harrisonburg city 1971–1975 Comp. p. 973; 42 U.S.C. 241, TN Union City city VA Leesburg town 242b, 243, 246, 300f, 300g, 300g–1, 300g–2, TX Alice city VA Martinsville city 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, TX Alvin city VA Radford city 300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., TX Andrews city VA Staunton city 6901–6992k, 7401–7671q, 7542, 9601–9657, TX Angleton city VA Waynesboro city 11023, 11048. TX Bay City city VA Winchester city TX Beeville city VT Rutland city 2. In § 9.1 the table is amended by TX Big Spring city WA Aberdeen city adding entries in numerical order under TX Borger city WA Anacortes city the indicated heading to read as follows: TX Brenham city WA Centralia city TX Brownwood city WA Ellensburg city § 9.1 OMB approvals under the Paperwork TX Burkburnett city WA Moses Lake city Reduction Act. TX Canyon city WA Mount Vernon city * * * * *

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OMB control 40 CFR citation No.

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EPA Administered Permit Programs: The National Pollutant Discharge Elimination System

******* 122.26(g) ...... 2040±0211

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State Permit Requirements

******* 123.35(b) ...... 2040±0211

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PART 122ÐEPA ADMINISTERED b. Redesignate paragraph (b)(15) as within a geographic area, contributes to PERMIT PROGRAMS: THE NATIONAL paragraph (b)(20) and add new a violation of a water quality standard POLLUTANT DISCHARGE paragraphs (b)(15) through (b)(19); or is a significant contributor of ELIMINATION SYSTEM c. Revise the heading for paragraph pollutants to waters of the United (c), the first sentence of paragraph (c)(1) States. 1. The authority citation for part 122 introductory text, the first sentence of (ii) Operators of small MS4s continues to read as follows: paragraph (c)(1)(ii) introductory text, designated pursuant to paragraphs Authority: The Clean Water Act, 33 U.S.C. paragraphs (e) heading and introductory (a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of 1251 et seq. text, (e)(1), (e)(5) introductory text, and this section shall seek coverage under (e)(5)(i); an NPDES permit in accordance with 2. Revise § 122.21(c)(1) to read as d. Add paragraphs (e)(8) and (e)(9); §§ 122.33 through 122.35. Operators of follows: and non-municipal sources designated e. Revise paragraphs (f)(4), (f)(5), and pursuant to paragraphs (a)(9)(i)(B), § 122.21 Application for a permit (g). (applicable to State programs, see § 123.25). The additions and revisions read as (a)(9)(i)(C), and (a)(9)(i)(D) of this * * * * * follows: section shall seek coverage under an NPDES permit in accordance with (c) Time to apply. (1) Any person § 122.26 Storm water discharges proposing a new discharge, shall submit paragraph (c)(1) of this section. (applicable to State NPDES programs, see (iii) Operators of storm water an application at least 180 days before § 123.25). the date on which the discharge is to discharges designated pursuant to (a) * * * paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of commence, unless permission for a later (9)(i) On and after October 1, 1994, for this section shall apply to the Director date has been granted by the Director. discharges composed entirely of storm for a permit within 180 days of receipt Facilities proposing a new discharge of water, that are not required by of notice, unless permission for a later storm water associated with industrial paragraph (a)(1) of this section to obtain date is granted by the Director (see activity shall submit an application 180 a permit, operators shall be required to § 124.52(c) of this chapter). days before that facility commences obtain a NPDES permit only if: industrial activity which may result in (A) The discharge is from a small MS4 (b) * * * a discharge of storm water associated required to be regulated pursuant to (4) * * * with that industrial activity. Facilities § 122.32; (i) Located in an incorporated place described under § 122.26(b)(14)(x) or (B) The discharge is a storm water with a population of 250,000 or more as (b)(15)(i) shall submit applications at discharge associated with small determined by the 1990 Decennial least 90 days before the date on which construction activity pursuant to Census by the Bureau of the Census construction is to commence. Different paragraph (b)(15) of this section; (Appendix F of this part); or submittal dates may be required under (C) The Director, or in States with * * * * * approved NPDES programs either the the terms of applicable general permits. (7) * * * Director or the EPA Regional Persons proposing a new discharge are (i) Located in an incorporated place encouraged to submit their applications Administrator, determines that storm water controls are needed for the with a population of 100,000 or more well in advance of the 90 or 180 day but less than 250,000, as determined by requirements to avoid delay. See also discharge based on wasteload allocations that are part of ‘‘total the 1990 Decennial Census by the paragraph (k) of this section and Bureau of the Census (Appendix G of § 122.26(c)(1)(i)(G) and (c)(1)(ii). maximum daily loads’’ (TMDLs) that address the pollutant(s) of concern; or this part); or * * * * * (D) The Director, or in States with * * * * * 3. Amend § 122.26 as follows: approved NPDES programs either the (14) Storm water discharge associated a. Revise paragraphs (a)(9), (b)(4)(i), Director or the EPA Regional with industrial activity means the (b)(7)(i), (b)(14) introductory text, Administrator, determines that the discharge from any conveyance that is (b)(14)(x), (b)(14)(xi); discharge, or category of discharges used for collecting and conveying storm

VerDate 29-OCT-99 19:53 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68839 water and that is directly related to (x) Construction activity including from EPA’s Water Resource Center, Mail manufacturing, processing or raw clearing, grading and excavation, except Code RC4100, 401 M St. S.W., materials storage areas at an industrial operations that result in the disturbance Washington, DC 20460. A copy is also plant. The term does not include of less than five acres of total land area. available for inspection at the U.S. EPA discharges from facilities or activities Construction activity also includes the Water Docket , 401 M Street S.W., excluded from the NPDES program disturbance of less than five acres of Washington, DC. 20460, or the Office of under this part 122. For the categories total land area that is a part of a larger the Federal Register, 800 N. Capitol of industries identified in this section, common plan of development or sale if Street N.W. Suite 700, Washington, DC. the term includes, but is not limited to, the larger common plan will ultimately An operator must certify to the Director storm water discharges from industrial disturb five acres or more; that the construction activity will take plant yards; immediate access roads and (xi) Facilities under Standard place during a period when the value of rail lines used or traveled by carriers of Industrial Classifications 20, 21, 22, 23, the rainfall erosivity factor is less than raw materials, manufactured products, 2434, 25, 265, 267, 27, 283, 285, 30, 31 waste material, or by-products used or (except 311), 323, 34 (except 3441), 35, five; or created by the facility; material handling 36, 37 (except 373), 38, 39, and 4221– (B) Storm water controls are not sites; refuse sites; sites used for the 25; needed based on a ‘‘total maximum application or disposal of process waste (15) Storm water discharge associated daily load’’ (TMDL) approved or waters (as defined at part 401 of this with small construction activity means established by EPA that addresses the chapter); sites used for the storage and the discharge of storm water from: pollutant(s) of concern or, for non- maintenance of material handling (i) Construction activities including impaired waters that do not require equipment; sites used for residual clearing, grading, and excavating that TMDLs, an equivalent analysis that treatment, storage, or disposal; shipping result in land disturbance of equal to or determines allocations for small and receiving areas; manufacturing greater than one acre and less than five construction sites for the pollutant(s) of buildings; storage areas (including tank acres. Small construction activity also concern or that determines that such includes the disturbance of less than farms) for raw materials, and allocations are not needed to protect intermediate and final products; and one acre of total land area that is part water quality based on consideration of areas where industrial activity has taken of a larger common plan of development existing in-stream concentrations, place in the past and significant or sale if the larger common plan will materials remain and are exposed to ultimately disturb equal to or greater expected growth in pollutant storm water. For the purposes of this than one and less than five acres. Small contributions from all sources, and a paragraph, material handling activities construction activity does not include margin of safety. For the purpose of this include storage, loading and unloading, routine maintenance that is performed paragraph, the pollutant(s) of concern transportation, or conveyance of any to maintain the original line and grade, include sediment or a parameter that raw material, intermediate product, hydraulic capacity, or original purpose addresses sediment (such as total final product, by-product or waste of the facility. The Director may waive suspended solids, turbidity or siltation) product. The term excludes areas the otherwise applicable requirements and any other pollutant that has been located on plant lands separate from the in a general permit for a storm water identified as a cause of impairment of plant’s industrial activities, such as discharge from construction activities any water body that will receive a office buildings and accompanying that disturb less than five acres where: discharge from the construction activity. parking lots as long as the drainage from (A) The value of the rainfall erosivity The operator must certify to the Director the excluded areas is not mixed with factor (‘‘R’’ in the Revised Universal Soil that the construction activity will take storm water drained from the above Loss Equation) is less than five during place, and storm water discharges will described areas. Industrial facilities the period of construction activity. The occur, within the drainage area (including industrial facilities that are rainfall erosivity factor is determined in addressed by the TMDL or equivalent federally, State, or municipally owned accordance with Chapter 2 of analysis. or operated that meet the description of Agriculture Handbook Number 703, the facilities listed in paragraphs Predicting Soil Erosion by Water: A (ii) Any other construction activity (b)(14)(i) through (xi) of this section) Guide to Conservation Planning With designated by the Director, or in States include those facilities designated under the Revised Universal Soil Loss with approved NPDES programs either the provisions of paragraph (a)(1)(v) of Equation (RUSLE), pages 21–64, dated the Director or the EPA Regional this section. The following categories of January 1997. The Director of the Administrator, based on the potential facilities are considered to be engaging Federal Register approves this for contribution to a violation of a water in ‘‘industrial activity’’ for purposes of incorporation by reference in quality standard or for significant paragraph (b)(14): accordance with 5 U.S.C 552(a) and 1 contribution of pollutants to waters of * * * * * CFR part 51. Copies may be obtained the United States.

EXHIBIT 1 TO § 122.26(B)(15).ÐSUMMARY OF COVERAGE OF ``STORM WATER DISCHARGES ASSOCIATED WITH SMALL CONSTRUCTION ACTIVITY'' UNDER THE NPDES STORM WATER PROGRAM

Automatic Designation: Required Nationwide • Construction activities that result in a land disturbance of equal to or greater than one acre Coverage. and less than five acres. • Construction activities disturbing less than one acre if part of a larger common plan of devel- opment or sale with a planned disturbance of equal to or greater than one acre and less than five acres. (see § 122.26(b)(15)(i).) Potential Designation: Optional Evaluation and • Construction activities that result in a land disturbance of less than one acre based on the Designation by the NPDES Permitting Author- potential for contribution to a violation of a water quality standard or for significant contribu- ity or EPA Regional Administrator.. tion of pollutants. (see § 122.26(b)(15)(ii).)

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EXHIBIT 1 TO § 122.26(B)(15).ÐSUMMARY OF COVERAGE OF ``STORM WATER DISCHARGES ASSOCIATED WITH SMALL CONSTRUCTION ACTIVITY'' UNDER THE NPDES STORM WATER PROGRAMÐContinued Potential Waiver: Waiver from Requirements as Any automatically designated construction activity where the operator certifies: (1) A rainfall Determined by the NPDES Permitting Author- erosivity factor of less than five, or (2) That the activity will occur within an area where con- ity.. trols are not needed based on a TMDL or, for non-impaired waters that do not require a TMDL, an equivalent analysis for the pollutant(s) of concern. (see § 122.26(b)(15)(i).)

(16) Small municipal separate storm (ii) An operator of an existing or new (8) For any storm water discharge sewer system means all separate storm storm water discharge that is associated associated with small construction sewers that are: with industrial activity solely under activity identified in paragraph (b)(15)(i) (i) Owned or operated by the United paragraph (b)(14)(x) of this section or is of this section, see § 122.21(c)(1). States, a State, city, town, borough, associated with small construction Discharges from these sources require county, parish, district, association, or activity solely under paragraph (b)(15) permit authorization by March 10, 2003, other public body (created by or of this section, is exempt from the unless designated for coverage before pursuant to State law) having requirements of § 122.21(g) and then. jurisdiction over disposal of sewage, paragraph (c)(1)(i) of this section. * * * (9) For any discharge from a regulated industrial wastes, storm water, or other * * * * * small MS4, the permit application made wastes, including special districts under (e) Application deadlines. Any under § 122.33 must be submitted to the State law such as a sewer district, flood operator of a point source required to Director by: control district or drainage district, or obtain a permit under this section that (i) March 10, 2003 if designated under similar entity, or an Indian tribe or an does not have an effective NPDES § 122.32(a)(1) unless your MS4 serves a authorized Indian tribal organization, or permit authorizing discharges from its jurisdiction with a population under a designated and approved management storm water outfalls shall submit an 10,000 and the NPDES permitting agency under section 208 of the CWA application in accordance with the authority has established a phasing that discharges to waters of the United following deadlines: schedule under § 123.35(d)(3) (see States. (1) Storm water discharges associated § 122.33(c)(1)); or (ii) Not defined as ‘‘large’’ or with industrial activity. (i) Except as (ii) Within 180 days of notice, unless ‘‘medium’’ municipal separate storm provided in paragraph (e)(1)(ii) of this the NPDES permitting authority grants a sewer systems pursuant to paragraphs section, for any storm water discharge later date, if designated under (b)(4) and (b)(7) of this section, or associated with industrial activity § 122.32(a)(2) (see § 122.33(c)(2)). designated under paragraph (a)(1)(v) of (f) * * * identified in paragraphs (b)(14)(i) this section. (4) Any person may petition the (iii) This term includes systems through (xi) of this section, that is not Director for the designation of a large, similar to separate storm sewer systems part of a group application as described medium, or small municipal separate in municipalities, such as systems at in paragraph (c)(2) of this section or that storm sewer system as defined by military bases, large hospital or prison is not authorized by a storm water paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) complexes, and highways and other general permit, a permit application of this section. thoroughfares. The term does not made pursuant to paragraph (c) of this (5) The Director shall make a final include separate storm sewers in very section must be submitted to the determination on any petition received discrete areas, such as individual Director by October 1, 1992; under this section within 90 days after buildings. (ii) For any storm water discharge receiving the petition with the (17) Small MS4 means a small associated with industrial activity from exception of petitions to designate a municipal separate storm sewer system. a facility that is owned or operated by small MS4 in which case the Director (18) Municipal separate storm sewer a municipality with a population of less shall make a final determination on the system means all separate storm sewers than 100,000 that is not authorized by petition within 180 days after its that are defined as ‘‘large’’ or ‘‘medium’’ a general or individual permit, other receipt. or ‘‘small’’ municipal separate storm than an airport, powerplant, or (g) Conditional exclusion for ‘‘no sewer systems pursuant to paragraphs uncontrolled sanitary landfill, the exposure’’ of industrial activities and (b)(4), (b)(7), and (b)(16) of this section, permit application must be submitted to materials to storm water. Discharges or designated under paragraph (a)(1)(v) the Director by March 10, 2003. composed entirely of storm water are of this section. * * * * * not storm water discharges associated (19) MS4 means a municipal separate (5) A permit application shall be with industrial activity if there is ‘‘no storm sewer system. submitted to the Director within 180 exposure’’ of industrial materials and * * * * * days of notice, unless permission for a activities to rain, snow, snowmelt and/ (c) Application requirements for storm later date is granted by the Director (see or runoff, and the discharger satisfies water discharges associated with § 124.52(c) of this chapter), for: the conditions in paragraphs (g)(1) industrial activity and storm water (i) A storm water discharge that the through (g)(4) of this section. ‘‘No discharges associated with small Director, or in States with approved exposure’’ means that all industrial construction activity—(1) Individual NPDES programs, either the Director or materials and activities are protected by application. Dischargers of storm water the EPA Regional Administrator, a storm resistant shelter to prevent associated with industrial activity and determines that the discharge exposure to rain, snow, snowmelt, and/ with small construction activity are contributes to a violation of a water or runoff. Industrial materials or required to apply for an individual quality standard or is a significant activities include, but are not limited to, permit or seek coverage under a contributor of pollutants to waters of the material handling equipment or promulgated storm water general United States (see paragraphs (a)(1)(v) activities, industrial machinery, raw permit. * * * and (b)(15)(ii) of this section); materials, intermediate products, by- * * * * * * * * * * products, final products, or waste

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To qualify for this obtain permit authorization prior to the under an air quality control permit, and exclusion, the operator of the discharge change of circumstances. evident in the storm water outflow; must: (iv) Notwithstanding the provisions of (iv) All ‘‘no exposure’’ certifications (i) Provide a storm resistant shelter to this paragraph, the NPDES permitting must include the following certification protect industrial materials and authority retains the authority to require statement, and be signed in accordance activities from exposure to rain, snow, permit authorization (and deny this with the signatory requirements of snow melt, and runoff; exclusion) upon making a determination § 122.22: ‘‘I certify under penalty of law (ii) Complete and sign (according to that the discharge causes, has a that I have read and understand the § 122.22) a certification that there are no reasonable potential to cause, or eligibility requirements for claiming a discharges of storm water contaminated contributes to an instream excursion condition of ‘‘no exposure’’ and by exposure to industrial materials and above an applicable water quality obtaining an exclusion from NPDES activities from the entire facility, except standard, including designated uses. storm water permitting; and that there as provided in paragraph (g)(2) of this (4) Certification. The no exposure are no discharges of storm water section; certification must require the contaminated by exposure to industrial (iii) Submit the signed certification to submission of the following activities or materials from the the NPDES permitting authority once information, at a minimum, to aid the industrial facility identified in this every five years; NPDES permitting authority in document (except as allowed under (iv) Allow the Director to inspect the determining if the facility qualifies for paragraph (g)(2)) of this section. I facility to determine compliance with the no exposure exclusion: understand that I am obligated to submit the ‘‘no exposure’’ conditions; (i) The legal name, address and phone a no exposure certification form once (v) Allow the Director to make any every five years to the NPDES ‘‘no exposure’’ inspection reports number of the discharger (see § 122.21(b)); permitting authority and, if requested, available to the public upon request; to the operator of the local MS4 into (ii) The facility name and address, the and which this facility discharges (where county name and the latitude and (vi) For facilities that discharge applicable). I understand that I must longitude where the facility is located; through an MS4, upon request, submit allow the NPDES permitting authority, a copy of the certification of ‘‘no (iii) The certification must indicate or MS4 operator where the discharge is exposure’’ to the MS4 operator, as well that none of the following materials or into the local MS4, to perform as allow inspection and public reporting activities are, or will be in the inspections to confirm the condition of by the MS4 operator. foreseeable future, exposed to no exposure and to make such (2) Industrial materials and activities precipitation: inspection reports publicly available not requiring storm resistant shelter. To (A) Using, storing or cleaning upon request. I understand that I must qualify for this exclusion, storm industrial machinery or equipment, and obtain coverage under an NPDES permit resistant shelter is not required for: areas where residuals from using, prior to any point source discharge of (i) Drums, barrels, tanks, and similar storing or cleaning industrial machinery storm water from the facility. I certify containers that are tightly sealed, or equipment remain and are exposed to under penalty of law that this document provided those containers are not storm water; and all attachments were prepared deteriorated and do not leak (‘‘Sealed’’ (B) Materials or residuals on the under my direction or supervision in means banded or otherwise secured and ground or in storm water inlets from accordance with a system designed to without operational taps or valves); spills/leaks; assure that qualified personnel properly (ii) Adequately maintained vehicles (C) Materials or products from past gathered and evaluated the information used in material handling; and industrial activity; submitted. Based upon my inquiry of (iii) Final products, other than (D) Material handling equipment the person or persons who manage the products that would be mobilized in (except adequately maintained system, or those persons directly storm water discharge (e.g., rock salt). vehicles); involved in gathering the information, (3) Limitations. (i) Storm water the information submitted is to the best discharges from construction activities (E) Materials or products during of my knowledge and belief true, identified in paragraphs (b)(14)(x) and loading/unloading or transporting accurate and complete. I am aware there (b)(15) are not eligible for this activities; are significant penalties for submitting conditional exclusion. (F) Materials or products stored (ii) This conditional exclusion from outdoors (except final products false information, including the the requirement for an NPDES permit is intended for outside use, e.g., new cars, possibility of fine and imprisonment for available on a facility-wide basis only, where exposure to storm water does not knowing violations.’’ 4. Revise § 122.28(b)(2)(v) to read as not for individual outfalls. If a facility result in the discharge of pollutants); follows: has some discharges of storm water that (G) Materials contained in open, would otherwise be ‘‘no exposure’’ deteriorated or leaking storage drums, § 122.28 General permits (applicable to discharges, individual permit barrels, tanks, and similar containers; State NPDES programs, see § 123.25). requirements should be adjusted (H) Materials or products handled/ * * * * * accordingly. stored on roads or railways owned or (b)*** (iii) If circumstances change and maintained by the discharger; (2)*** industrial materials or activities become (I) Waste material (except waste in (v) Discharges other than discharges exposed to rain, snow, snow melt, and/ covered, non-leaking containers, e.g., from publicly owned treatment works, or runoff, the conditions for this dumpsters); combined sewer overflows, municipal

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If the submitting a notice of intent where the As a Tribe you may: NPDES permitting authority determines Director finds that a notice of intent (a) Be authorized to operate the that you need a permit, you are required requirement would be inappropriate. In NPDES program including the storm to comply with §§ 122.33 through making such a finding, the Director water program, after EPA determines 122.35. shall consider: the type of discharge; the that you are eligible for treatment in the (c) The NPDES permitting authority expected nature of the discharge; the same manner as a State under §§ 123.31 may waive the requirements otherwise potential for toxic and conventional through 123.34 of this chapter. (If you applicable to you if you meet the criteria pollutants in the discharges; the do not have an authorized NPDES of paragraph (d) or (e) of this section. If expected volume of the discharges; program, EPA implements the program you receive a waiver under this section, other means of identifying discharges for discharges on your reservation as you may subsequently be required to covered by the permit; and the well as other Indian country, generally.); seek coverage under an NPDES permit estimated number of discharges to be (b) Be classified as an owner of a in accordance with § 122.33(a) if covered by the permit. The Director regulated small MS4, as defined in circumstances change. (See also shall provide in the public notice of the § 122.32. (Designation of your Tribe as § 123.35(b) of this chapter.) general permit the reasons for not an owner of a small MS4 for purposes (d) The NPDES permitting authority requiring a notice of intent. of this part is an approach that is may waive permit coverage if your MS4 * * * * * consistent with EPA’s 1984 Indian serves a population of less than 1,000 5. Add §§ 122.30 through 122.37 to Policy of operating on a government-to- within the urbanized area and you meet subpart B to read as follows: government basis with EPA looking to the following criteria: Tribes as the lead governmental (1) Your system is not contributing § 122.30 What are the objectives of the authorities to address environmental substantially to the pollutant loadings of storm water regulations for small MS4s? issues on their reservations as a physically interconnected MS4 that is (a) Sections 122.30 through 122.37 are appropriate. If you operate a separate regulated by the NPDES storm water written in a ‘‘readable regulation’’ storm sewer system that meets the program (see § 123.35(b)(4) of this format that includes both rule definition of a regulated small MS4, you chapter); and requirements and EPA guidance that is are subject to the requirements under (2) If you discharge any pollutant(s) not legally binding. EPA has clearly §§ 122.33 through 122.35. If you are not that have been identified as a cause of distinguished its recommended designated as a regulated small MS4, impairment of any water body to which guidance from the rule requirements by you may ask EPA to designate you as you discharge, storm water controls are putting the guidance in a separate such for the purposes of this part.); or not needed based on wasteload paragraph headed by the word (c) Be a discharger of storm water allocations that are part of an EPA ‘‘guidance’’. associated with industrial activity or approved or established ‘‘total (b) Under the statutory mandate in small construction activity under maximum daily load’’ (TMDL) that section 402(p)(6) of the Clean Water Act, §§ 122.26(b)(14) or (b)(15), in which addresses the pollutant(s) of concern. the purpose of this portion of the storm case you must meet the applicable (e) The NPDES permitting authority water program is to designate additional requirements. Within Indian country, may waive permit coverage if your MS4 sources that need to be regulated to the NPDES permitting authority is serves a population under 10,000 and protect water quality and to establish a generally EPA, unless you are you meet the following criteria: comprehensive storm water program to authorized to administer the NPDES (1) The permitting authority has regulate these sources. (Because the program. evaluated all waters of the U.S., storm water program is part of the including small streams, tributaries, National Pollutant Discharge § 122.32 As an operator of a small MS4, lakes, and ponds, that receive a Elimination System (NPDES) Program, am I regulated under the NPDES storm discharge from your MS4; you should also refer to § 122.1 which water program? (2) For all such waters, the permitting addresses the broader purpose of the (a) Unless you qualify for a waiver authority has determined that storm NPDES program.) under paragraph (c) of this section, you water controls are not needed based on (c) Storm water runoff continues to are regulated if you operate a small wasteload allocations that are part of an harm the nation’s waters. Runoff from MS4, including but not limited to EPA approved or established TMDL that lands modified by human activities can systems operated by federal, State, addresses the pollutant(s) of concern or, harm surface water resources in several Tribal, and local governments, if a TMDL has not been developed or ways including by changing natural including State departments of approved, an equivalent analysis that hydrologic patterns and by elevating transportation; and: determines sources and allocations for pollutant concentrations and loadings. (1) Your small MS4 is located in an the pollutant(s) of concern; Storm water runoff may contain or urbanized area as determined by the (3) For the purpose of this paragraph mobilize high levels of contaminants, latest Decennial Census by the Bureau (e), the pollutant(s) of concern include such as sediment, suspended solids, of the Census. (If your small MS4 is not biochemical oxygen demand (BOD), nutrients, heavy metals, pathogens, located entirely within an urbanized sediment or a parameter that addresses toxins, oxygen-demanding substances, area, only the portion that is within the sediment (such as total suspended and floatables. urbanized area is regulated); or solids, turbidity or siltation), pathogens, (d) EPA strongly encourages (2) You are designated by the NPDES oil and grease, and any pollutant that partnerships and the watershed permitting authority, including where has been identified as a cause of approach as the management framework the designation is pursuant to impairment of any water body that will for efficiently, effectively, and §§ 123.35(b)(3) and (b)(4) of this chapter, receive a discharge from your MS4; and

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(4) The permitting authority has of the application requirements in permit under paragraph (b)(3) of this determined that future discharges from §§ 122.26(d)(1) and (2) by March 10, section, within 180 days of notice, your MS4 do not have the potential to 2003. You do not need to submit the unless the NPDES permitting authority result in exceedances of water quality information required by grants a later date. standards, including impairment of §§ 122.26(d)(1)(ii) and (d)(2) regarding your legal authority, unless you intend § 122.34 As an operator of a regulated designated uses, or other significant small MS4, what will my NPDES MS4 storm water quality impacts, including habitat for the permit writer to take such water permit require? and biological impacts. information into account when (a) Your NPDES MS4 permit will developing your other permit require at a minimum that you develop, § 122.33 If I am an operator of a regulated conditions. small MS4, how do I apply for an NPDES (iii) If allowed by your NPDES implement, and enforce a storm water permit and when do I have to apply? permitting authority, you and another management program designed to (a) If you operate a regulated small regulated entity may jointly apply under reduce the discharge of pollutants from MS4 under § 122.32, you must seek either paragraph (b)(2)(i) or (b)(2)(ii) of your MS4 to the maximum extent coverage under a NPDES permit issued this section to be co-permittees under an practicable (MEP), to protect water by your NPDES permitting authority. If individual permit. quality, and to satisfy the appropriate you are located in an NPDES authorized (3) If your small MS4 is in the same water quality requirements of the Clean State, Tribe, or Territory, then that State, urbanized area as a medium or large Water Act. Your storm water Tribe, or Territory is your NPDES MS4 with an NPDES storm water permit management program must include the permitting authority. Otherwise, your and that other MS4 is willing to have minimum control measures described in NPDES permitting authority is the EPA you participate in its storm water paragraph (b) of this section unless you Regional Office. program, you and the other MS4 may apply for a permit under § 122.26(d). (b) You must seek authorization to jointly seek a modification of the other For purposes of this section, narrative discharge under a general or individual MS4 permit to include you as a limited effluent limitations requiring NPDES permit, as follows: co-permittee. As a limited co-permittee, implementation of best management (1) If your NPDES permitting you will be responsible for compliance practices (BMPs) are generally the most authority has issued a general permit with the permit’s conditions applicable appropriate form of effluent limitations applicable to your discharge and you are to your jurisdiction. If you choose this when designed to satisfy technology seeking coverage under the general option you will need to comply with the requirements (including reductions of permit, you must submit a Notice of permit application requirements of pollutants to the maximum extent Intent (NOI) that includes the § 122.26, rather than the requirements of practicable) and to protect water quality. information on your best management § 122.34. You do not need to comply Implementation of best management practices and measurable goals required with the specific application practices consistent with the provisions by § 122.34(d). You may file your own requirements of § 122.26(d)(1)(iii) and of the storm water management program NOI, or you and other municipalities or (iv) and (d)(2)(iii) (discharge required pursuant to this section and governmental entities may jointly characterization). You may satisfy the the provisions of the permit required submit an NOI. If you want to share requirements in § 122.26 (d)(1)(v) and pursuant to § 122.33 constitutes responsibilities for meeting the (d)(2)(iv) (identification of a compliance with the standard of minimum measures with other management program) by referring to reducing pollutants to the ‘‘maximum municipalities or governmental entities, the other MS4’s storm water extent practicable.’’ Your NPDES you must submit an NOI that describes management program. permitting authority will specify a time which minimum measures you will (4) Guidance: In referencing an MS4’s period of up to 5 years from the date of implement and identify the entities that storm water management program, you permit issuance for you to develop and will implement the other minimum should briefly describe how the existing implement your program. measures within the area served by your plan will address discharges from your (b) Minimum control measures—(1) MS4. The general permit will explain small MS4 or would need to be Public education and outreach on storm any other steps necessary to obtain supplemented in order to adequately water impacts. (i) You must implement permit authorization. address your discharges. You should a public education program to distribute (2)(i) If you are seeking authorization also explain your role in coordinating educational materials to the community to discharge under an individual permit storm water pollutant control activities or conduct equivalent outreach and wish to implement a program under in your MS4, and detail the resources activities about the impacts of storm § 122.34, you must submit an available to you to accomplish the plan. water discharges on water bodies and application to your NPDES permitting (c) If you operate a regulated small the steps that the public can take to authority that includes the information MS4: reduce pollutants in storm water runoff. required under §§ 122.21(f) and (1) Designated under § 122.32(a)(1), (ii) Guidance: You may use storm 122.34(d), an estimate of square mileage you must apply for coverage under an water educational materials provided by served by your small MS4, and any NPDES permit, or apply for a your State, Tribe, EPA, environmental, additional information that your NPDES modification of an existing NPDES public interest or trade organizations, or permitting authority requests. A storm permit under paragraph (b)(3) of this other MS4s. The public education sewer map that satisfies the requirement section by March 10, 2003, unless your program should inform individuals and of § 122.34(b)(3)(i) will satisfy the map MS4 serves a jurisdiction with a households about the steps they can requirement in § 122.21(f)(7). population under 10,000 and the take to reduce storm water pollution, (ii) If you are seeking authorization to NPDES permitting authority has such as ensuring proper septic system discharge under an individual permit established a phasing schedule under maintenance, ensuring the proper use and wish to implement a program that § 123.35(d)(3) of this chapter. and disposal of landscape and garden is different from the program under (2) Designated under § 122.32(a)(2), chemicals including fertilizers and § 122.34, you will need to comply with you must apply for coverage under an pesticides, protecting and restoring the permit application requirements of NPDES permit, or apply for a riparian vegetation, and properly § 122.26(d). You must submit both Parts modification of an existing NPDES disposing of used motor oil or

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 68844 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations household hazardous wastes. EPA (as defined at § 122.26(b)(2)) into your connections or discharges, and recommends that the program inform small MS4. distribution of outreach materials. individuals and groups how to become (ii) You must: (4) Construction site storm water involved in local stream and beach (A) Develop, if not already completed, runoff control. (i) You must develop, restoration activities as well as activities a storm sewer system map, showing the implement, and enforce a program to that are coordinated by youth service location of all outfalls and the names reduce pollutants in any storm water and conservation corps or other citizen and location of all waters of the United runoff to your small MS4 from groups. EPA recommends that the States that receive discharges from those construction activities that result in a public education program be tailored, outfalls; land disturbance of greater than or equal using a mix of locally appropriate (B) To the extent allowable under to one acre. Reduction of storm water strategies, to target specific audiences State, Tribal or local law, effectively discharges from construction activity and communities. Examples of prohibit, through ordinance, or other disturbing less than one acre must be strategies include distributing brochures regulatory mechanism, non-storm water included in your program if that or fact sheets, sponsoring speaking discharges into your storm sewer system construction activity is part of a larger engagements before community groups, and implement appropriate enforcement common plan of development or sale providing public service procedures and actions; that would disturb one acre or more. If announcements, implementing (C) Develop and implement a plan to the NPDES permitting authority waives detect and address non-storm water educational programs targeted at school requirements for storm water discharges discharges, including illegal dumping, age children, and conducting associated with small construction to your system; and activity in accordance with community-based projects such as storm (D) Inform public employees, drain stenciling, and watershed and § 122.26(b)(15)(i), you are not required businesses, and the general public of to develop, implement, and/or enforce a beach cleanups. In addition, EPA hazards associated with illegal recommends that some of the materials program to reduce pollutant discharges discharges and improper disposal of from such sites. or outreach programs be directed toward waste. targeted groups of commercial, (ii) Your program must include the (iii) You need address the following development and implementation of, at industrial, and institutional entities categories of non-storm water discharges likely to have significant storm water a minimum: or flows (i.e., illicit discharges) only if (A) An ordinance or other regulatory impacts. For example, providing you identify them as significant information to restaurants on the impact mechanism to require erosion and contributors of pollutants to your small sediment controls, as well as sanctions of grease clogging storm drains and to MS4: water line flushing, landscape garages on the impact of oil discharges. to ensure compliance, to the extent irrigation, diverted stream flows, rising allowable under State, Tribal, or local You are encouraged to tailor your ground waters, uncontaminated ground outreach program to address the law; water infiltration (as defined at 40 CFR (B) Requirements for construction site viewpoints and concerns of all 35.2005(20)), uncontaminated pumped communities, particularly minority and operators to implement appropriate ground water, discharges from potable erosion and sediment control best disadvantaged communities, as well as water sources, foundation drains, air any special concerns relating to management practices; conditioning condensation, irrigation (C) Requirements for construction site children. water, springs, water from crawl space operators to control waste such as (2) Public involvement/participation. pumps, footing drains, lawn watering, discarded building materials, concrete (i) You must, at a minimum, comply individual residential car washing, truck washout, chemicals, litter, and with State, Tribal and local public flows from riparian habitats and sanitary waste at the construction site notice requirements when wetlands, dechlorinated swimming pool that may cause adverse impacts to water implementing a public involvement/ discharges, and street wash water quality; participation program. (discharges or flows from fire fighting (D) Procedures for site plan review (ii) Guidance: EPA recommends that activities are excluded from the effective which incorporate consideration of the public be included in developing, prohibition against non-storm water and potential water quality impacts; implementing, and reviewing your need only be addressed where they are (E) Procedures for receipt and storm water management program and identified as significant sources of consideration of information submitted that the public participation process pollutants to waters of the United by the public, and should make efforts to reach out and States). (F) Procedures for site inspection and engage all economic and ethnic groups. (iv) Guidance: EPA recommends that enforcement of control measures. Opportunities for members of the public the plan to detect and address illicit (iii) Guidance: Examples of sanctions to participate in program development discharges include the following four to ensure compliance include non- and implementation include serving as components: procedures for locating monetary penalties, fines, bonding citizen representatives on a local storm priority areas likely to have illicit requirements and/or permit denials for water management panel, attending discharges; procedures for tracing the non-compliance. EPA recommends that public hearings, working as citizen source of an illicit discharge; procedures procedures for site plan review include volunteers to educate other individuals for removing the source of the the review of individual pre- about the program, assisting in program discharge; and procedures for program construction site plans to ensure coordination with other pre-existing evaluation and assessment. EPA consistency with local sediment and programs, or participating in volunteer recommends visually screening outfalls erosion control requirements. monitoring efforts. (Citizens should during dry weather and conducting field Procedures for site inspections and obtain approval where necessary for tests of selected pollutants as part of the enforcement of control measures could lawful access to monitoring sites.) procedures for locating priority areas. include steps to identify priority sites (3) Illicit discharge detection and Illicit discharge education actions may for inspection and enforcement based elimination. (i) You must develop, include storm drain stenciling, a on the nature of the construction implement and enforce a program to program to promote, publicize, and activity, topography, and the detect and eliminate illicit discharges facilitate public reporting of illicit characteristics of soils and receiving

VerDate 29-OCT-99 18:37 Dec 07, 1999 Jkt 190000 PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 E:\FR\FM\08DER2.XXX pfrm07 PsN: 08DER2 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68845 water quality. You are encouraged to process that identifies the (i) You must develop and implement an provide appropriate educational and municipality’s program goals (e.g., operation and maintenance program training measures for construction site minimize water quality impacts that includes a training component and operators. You may wish to require a resulting from post-construction runoff has the ultimate goal of preventing or storm water pollution prevention plan from new development and reducing pollutant runoff from for construction sites within your redevelopment), implementation municipal operations. Using training jurisdiction that discharge into your strategies (e.g., adopt a combination of materials that are available from EPA, system. See § 122.44(s) (NPDES structural and/or non-structural BMPs), your State, Tribe, or other organizations, permitting authorities’ option to operation and maintenance policies and your program must include employee incorporate qualifying State, Tribal and procedures, and enforcement training to prevent and reduce storm local erosion and sediment control procedures. In developing your water pollution from activities such as programs into NPDES permits for storm program, you should consider assessing park and open space maintenance, fleet water discharges from construction existing ordinances, policies, programs and building maintenance, new sites). Also see § 122.35(b) (The NPDES and studies that address storm water construction and land disturbances, and permitting authority may recognize that runoff quality. In addition to assessing storm water system maintenance. another government entity, including these existing documents and programs, (ii) Guidance: EPA recommends that, the permitting authority, may be you should provide opportunities to the at a minimum, you consider the responsible for implementing one or public to participate in the development following in developing your program: more of the minimum measures on your of the program. Non-structural BMPs are maintenance activities, maintenance behalf.) preventative actions that involve schedules, and long-term inspection (5) Post-construction storm water management and source controls such procedures for structural and non- management in new development and as: policies and ordinances that provide structural storm water controls to redevelopment. requirements and standards to direct reduce floatables and other pollutants (i) You must develop, implement, and growth to identified areas, protect discharged from your separate storm enforce a program to address storm sensitive areas such as wetlands and sewers; controls for reducing or water runoff from new development and riparian areas, maintain and/or increase eliminating the discharge of pollutants redevelopment projects that disturb open space (including a dedicated from streets, roads, highways, municipal greater than or equal to one acre, funding source for open space parking lots, maintenance and storage including projects less than one acre acquisition), provide buffers along yards, fleet or maintenance shops with that are part of a larger common plan of sensitive water bodies, minimize outdoor storage areas, salt/sand storage development or sale, that discharge into impervious surfaces, and minimize locations and snow disposal areas your small MS4. Your program must disturbance of soils and vegetation; operated by you, and waste transfer ensure that controls are in place that policies or ordinances that encourage stations; procedures for properly would prevent or minimize water infill development in higher density disposing of waste removed from the quality impacts. urban areas, and areas with existing separate storm sewers and areas listed (ii) You must: infrastructure; education programs for above (such as dredge spoil, (A) Develop and implement strategies accumulated sediments, floatables, and which include a combination of developers and the public about project designs that minimize water quality other debris); and ways to ensure that structural and/or non-structural best new flood management projects assess impacts; and measures such as management practices (BMPs) the impacts on water quality and minimization of percent impervious appropriate for your community; examine existing projects for area after development and (B) Use an ordinance or other incorporating additional water quality minimization of directly connected regulatory mechanism to address post- protection devices or practices. impervious areas. Structural BMPs construction runoff from new Operation and maintenance should be include: storage practices such as wet development and redevelopment an integral component of all storm water ponds and extended-detention outlet projects to the extent allowable under management programs. This measure is structures; filtration practices such as State, Tribal or local law; and intended to improve the efficiency of grassed swales, sand filters and filter (C) Ensure adequate long-term these programs and require new operation and maintenance of BMPs. strips; and infiltration practices such as programs where necessary. Properly (iii) Guidance: If water quality infiltration basins and infiltration developed and implemented operation impacts are considered from the trenches. EPA recommends that you and maintenance programs reduce the beginning stages of a project, new ensure the appropriate implementation risk of water quality problems. development and potentially of the structural BMPs by considering (c) If an existing qualifying local redevelopment provide more some or all of the following: pre- program requires you to implement one opportunities for water quality construction review of BMP designs; or more of the minimum control protection. EPA recommends that the inspections during construction to measures of paragraph (b) of this BMPs chosen: be appropriate for the verify BMPs are built as designed; post- section, the NPDES permitting authority local community; minimize water construction inspection and may include conditions in your NPDES quality impacts; and attempt to maintenance of BMPs; and penalty permit that direct you to follow that maintain pre-development runoff provisions for the noncompliance with qualifying program’s requirements conditions. In choosing appropriate design, construction or operation and rather than the requirements of BMPs, EPA encourages you to maintenance. Storm water technologies paragraph (b) of this section. A participate in locally-based watershed are constantly being improved, and EPA qualifying local program is a local, State planning efforts which attempt to recommends that your requirements be or Tribal municipal storm water involve a diverse group of stakeholders responsive to these changes, management program that imposes, at a including interested citizens. When developments or improvements in minimum, the relevant requirements of developing a program that is consistent control technologies. paragraph (b) of this section. with this measure’s intent, EPA (6) Pollution prevention/good (d)(1) In your permit application recommends that you adopt a planning housekeeping for municipal operations. (either a notice of intent for coverage

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(i) The best management practices developed consistent with the (a) You may rely on another entity to (BMPs) that you or another entity will provisions of §§ 122.41 through 122.49, satisfy your NPDES permit obligations implement for each of the storm water as appropriate. to implement a minimum control minimum control measures at (g) Evaluation and assessment—(1) measure if: paragraphs (b)(1) through (b)(6) of this Evaluation. You must evaluate program (1) The other entity, in fact, section; compliance, the appropriateness of your implements the control measure; (ii) The measurable goals for each of identified best management practices, the BMPs including, as appropriate, the and progress towards achieving your (2) The particular control measure, or months and years in which you will identified measurable goals. component thereof, is at least as undertake required actions, including stringent as the corresponding NPDES Note to Paragraph (g)(1): The NPDES interim milestones and the frequency of permitting authority may determine permit requirement; and the action; and monitoring requirements for you in (3) The other entity agrees to (iii) The person or persons accordance with State/Tribal monitoring implement the control measure on your responsible for implementing or plans appropriate to your watershed. behalf. In the reports you must submit coordinating your storm water Participation in a group monitoring program under § 122.34(g)(3), you must also management program. is encouraged. specify that you rely on another entity (2) If you obtain coverage under a (2) Recordkeeping. You must keep general permit, you are not required to to satisfy some of your permit records required by the NPDES permit meet any measurable goal(s) identified obligations. If you are relying on another for at least 3 years. You must submit in your notice of intent in order to governmental entity regulated under your records to the NPDES permitting demonstrate compliance with the section 122 to satisfy all of your permit authority only when specifically asked minimum control measures in obligations, including your obligation to to do so. You must make your records, paragraphs (b)(3) through (b)(6) of this file periodic reports required by including a description of your storm section unless, prior to submitting your § 122.34(g)(3), you must note that fact in water management program, available to NOI, EPA or your State or Tribe has your NOI, but you are not required to the public at reasonable times during provided or issued a menu of BMPs that file the periodic reports. You remain regular business hours (see § 122.7 for addresses each such minimum measure. responsible for compliance with your confidentiality provision). (You may Even if no regulatory authority issues permit obligations if the other entity assess a reasonable charge for copying. the menu of BMPs, however, you still fails to implement the control measure You may require a member of the public must comply with other requirements of (or component thereof). Therefore, EPA to provide advance notice.) the general permit, including good faith encourages you to enter into a legally implementation of BMPs designed to (3) Reporting. Unless you are relying binding agreement with that entity if comply with the minimum measures. on another entity to satisfy your NPDES you want to minimize any uncertainty (3) Guidance: Either EPA or your State permit obligations under § 122.35(a), about compliance with your permit. or Tribal permitting authority will you must submit annual reports to the (b) In some cases, the NPDES provide a menu of BMPs. You may NPDES permitting authority for your permitting authority may recognize, choose BMPs from the menu or select first permit term. For subsequent permit others that satisfy the minimum control terms, you must submit reports in year either in your individual NPDES permit measures. two and four unless the NPDES or in an NPDES general permit, that (e)(1) You must comply with any permitting authority requires more another governmental entity is more stringent effluent limitations in frequent reports. Your report must responsible under an NPDES permit for your permit, including permit include: implementing one or more of the requirements that modify, or are in (i) The status of compliance with minimum control measures for your addition to, the minimum control permit conditions, an assessment of the small MS4 or that the permitting measures based on an approved total appropriateness of your identified best authority itself is responsible. Where the maximum daily load (TMDL) or management practices and progress permitting authority does so, you are equivalent analysis. The permitting towards achieving your identified not required to include such minimum authority may include such more measurable goals for each of the control measure(s) in your storm water stringent limitations based on a TMDL minimum control measures; management program. (For example, if a or equivalent analysis that determines (ii) Results of information collected State or Tribe is subject to an NPDES such limitations are needed to protect and analyzed, including monitoring permit that requires it to administer a water quality. data, if any, during the reporting period; program to control construction site (2) Guidance: EPA strongly (iii) A summary of the storm water runoff at the State or Tribal level and recommends that until the evaluation of activities you plan to undertake during that program satisfies all of the the storm water program in § 122.37, no the next reporting cycle; requirements of § 122.34(b)(4), you additional requirements beyond the could avoid responsibility for the minimum control measures be imposed (iv) A change in any identified best management practices or measurable construction measure, but would be on regulated small MS4s without the responsible for the remaining minimum agreement of the operator of the affected goals for any of the minimum control measures; and control measures.) Your permit may be small MS4, except where an approved reopened and modified to include the TMDL or equivalent analysis provides (v) Notice that you are relying on requirement to implement a minimum adequate information to develop more another governmental entity to satisfy control measure if the entity fails to specific measures to protect water some of your permit obligations (if implement it. quality. applicable).

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§ 122.36 As an operator of a regulated incorporate qualifying State, Tribal, or determination that another entity was small MS4, what happens if I don't comply local erosion and sediment control responsible for implementation of the with the application or permit requirements program requirements by reference. requirement(s); and in §§ 122.33 through 122.35? Where a qualifying State, Tribal, or local (ii) The other entity fails to implement NPDES permits are federally program does not include one or more measure(s) that satisfy the enforceable. Violators may be subject to of the elements in this paragraph (s)(1), requirement(s). the enforcement actions and penalties then the Director must include those * * * * * described in Clean Water Act sections elements as conditions in the permit. A 8. Revise Appendices F, G, H, and I 309 (b), (c), and (g) and 505, or under qualifying State, Tribal, or local erosion to Part 122 to read as follows: applicable State, Tribal, or local law. and sediment control program is one Compliance with a permit issued that includes: APPENDIX F TO PART 122.ÐINCOR- pursuant to section 402 of the Clean (i) Requirements for construction site PORATED PLACES WITH POPU- Water Act is deemed compliance, for operators to implement appropriate purposes of sections 309 and 505, with LATIONS GREATER THAN 250,000 erosion and sediment control best ACCORDING TO THE 1990 DECEN- sections 301, 302, 306, 307, and 403, management practices; NIAL CENSUS BY THE BUREAU OF except any standard imposed under (ii) Requirements for construction site section 307 for toxic pollutants operators to control waste such as THE CENSUS injurious to human health. If you are discarded building materials, concrete State Incorporated Place covered as a co-permittee under an truck washout, chemicals, litter, and individual permit or under a general sanitary waste at the construction site Alabama ...... Birmingham. permit by means of a joint Notice of that may cause adverse impacts to water Arizona ...... Phoenix. Intent you remain subject to the quality; Tucson. enforcement actions and penalties for (iii) Requirements for construction California ...... Long Beach. the failure to comply with the terms of site operators to develop and implement Los Angeles. the permit in your jurisdiction except as a storm water pollution prevention plan. Oakland. set forth in § 122.35(b). Sacramento. (A storm water pollution prevention San Diego. § 122.37 Will the small MS4 storm water plan includes site descriptions, San Francisco. program regulations at §§ 122.32 through descriptions of appropriate control San Jose. 122.36 and § 123.35 of this chapter change measures, copies of approved State, Colorado ...... Denver. in the future? Tribal or local requirements, District of Columbia EPA will evaluate the small MS4 maintenance procedures, inspection Florida Jacksonville. regulations at §§ 122.32 through 122.36 procedures, and identification of non- Miami. storm water discharges); and Tampa. and § 123.35 of this chapter after Georgia...... Atlanta. December 10, 2012 and make any (iv) Requirements to submit a site Illinois ...... Chicago. necessary revisions. (EPA intends to plan for review that incorporates Indiana ...... Indianapolis. conduct an enhanced research effort and consideration of potential water quality Kansas ...... Wichita. compile a comprehensive evaluation of impacts. Kentucky ...... Louisville. the NPDES MS4 storm water program. (2) For storm water discharges from Louisiana ...... New Orleans. EPA will re-evaluate the regulations construction activity identified in Maryland ...... Baltimore. based on data from the NPDES MS4 § 122.26(b)(14)(x), the Director may Massachusetts ...... Boston. storm water program, from research on include permit conditions that Michigan ...... Detroit. incorporate qualifying State, Tribal, or Minnesota ...... Minneapolis. receiving water impacts from storm St. Paul. water, and the effectiveness of best local erosion and sediment control Missouri ...... Kansas City. management practices (BMPs), as well program requirements by reference. A St. Louis. as other relevant information sources.) qualifying State, Tribal or local erosion Nebraska ...... Omaha. 6. In § 122.44, redesignate paragraphs and sediment control program is one New Jersey ...... Newark. (k)(2) and (k)(3) as paragraphs (k)(3) and that includes the elements listed in New Mexico ...... Albuquerque. (k)(4), remove the comma at the end of paragraph (s)(1) of this section and any New York ...... Buffalo. newly redesignated paragraph (k)(3) and additional requirements necessary to Bronx Borough. add a semicolon in its place, and add achieve the applicable technology-based Brooklyn Borough. Manhattan Borough. new paragraphs (k)(2) and (s) to read as standards of ‘‘best available technology’’ Queens Borough. follows: and ‘‘best conventional technology’’ Staten Island Bor- based on the best professional judgment ough. § 122.44 Establishing limitations, of the permit writer. North Carolina ...... Charlotte. standards, and other permit conditions 7. Add § 122.62(a)(14) to read as Ohio ...... Cincinnati. (applicable to State NPDES programs, see Cleveland. § 123.25). follows: Columbus. * * * * * § 122.62 Modification or revocation and Toledo. (k) * * * reissuance of permits (applicable to State Oklahoma ...... Oklahoma City. (2) Authorized under section 402(p) of programs, see § 123.25). Tulsa. CWA for the control of storm water * * * * * Oregon ...... Portland. discharges; (a) * * * Pennsylvania ...... Philadelphia. * * * * * (14) For a small MS4, to include an Pittsburgh. (s) Qualifying State, Tribal, or local effluent limitation requiring Tennessee ...... Memphis. Nashville/Davidson. programs. (1) For storm water implementation of a minimum control Texas ...... Austin. discharges associated with small measure or measures as specified in Dallas. construction activity identified in § 122.34(b) when: El Paso. § 122.26(b)(15), the Director may (i) The permit does not include such Fort Worth. include permit conditions that measure(s) based upon the Houston.

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APPENDIX F TO PART 122.ÐINCOR- APPENDIX G TO PART 122.ÐINCOR- APPENDIX G TO PART 122.ÐINCOR- PORATED PLACES WITH POPU- PORATED PLACES WITH POPU- PORATED PLACES WITH POPU- LATIONS GREATER THAN 250,000 LATIONS GREATER THAN 100,000 LATIONS GREATER THAN 100,000 ACCORDING TO THE 1990 DECEN- BUT LESS THAN 250,000 ACCORD- BUT LESS THAN 250,000 ACCORD- NIAL CENSUS BY THE BUREAU OF ING TO THE 1990 DECENNIAL CEN- ING TO THE 1990 DECENNIAL CEN- THE CENSUSÐContinued SUS BY THE BUREAU OF THE CEN- SUS BY THE BUREAU OF THE CEN- SUSÐContinued SUSÐContinued State Incorporated Place State Incorporated place State Incorporated place San Antonio. Virginia ...... Norfolk. Colorado Springs. New Jersey ...... Elizabeth. Virginia Beach. Lakewood. Jersey City. Washington ...... Seattle. Pueblo. Paterson. Wisconsin ...... Milwaukee. Connecticut ...... Bridgeport. New York ...... Albany. Hartford. Rochester. New Haven. Syracuse. PPENDIX TO ART NCOR A G P 122.ÐI - Stamford. Yonkers. PORATED PLACES WITH POPU- Waterbury. North Carolina ...... Durham. LATIONS GREATER THAN 100,000 Florida ...... Fort Lauderdale. Greensboro. Hialeah. UT ESS HAN CCORD Raleigh. B L T 250,000 A - Hollywood. ING TO THE 1990 DECENNIAL CEN- Winston-Salem. Orlando. Ohio ...... Akron. SUS BY THE BUREAU OF THE CEN- St. Petersburg. Dayton. Tallahassee. SUS Youngstown. Georgia ...... Columbus. Oregon ...... Eugene. State Incorporated place Macon. Savannah. Pennsylvania ...... Allentown. Idaho ...... Boise City. Erie. Alabama ...... Huntsville. Rhode Island ...... Providence. Mobile. Illinois ...... Peoria. Rockford. South Carolina ...... Columbia. Montgomery. Tennessee ...... Chattanooga. Alaska ...... Anchorage. Indiana ...... Evansville. Fort Wayne. Knoxville. Arizona ...... Mesa. Gary. Texas ...... Abilene. Tempe. South Bend. Amarillo. Arkansas ...... Little Rock. Iowa ...... Cedar Rapids. Arlington. California ...... Anaheim. Davenport. Beaumont. Bakersfield. Des Moines. Corpus Christi. Berkeley. Kansas ...... Kansas City. Garland. Chula Vista. Topeka. Irving. Concord. Kentucky ...... Lexington-Fayette. Laredo. El Monte. Louisiana ...... Baton Rouge. Lubbock. Escondido. Shreveport. Mesquite. Fremont. Massachusetts ...... Springfield. Pasadena. Fresno. Worcester. Plano. Fullerton. Michigan ...... Ann Arbor. Waco. Garden Grove. Flint. Utah ...... Salt Lake City. Glendale. Grand Rapids. Virginia ...... Alexandria. Hayward. Lansing. Chesapeake. Huntington Beach. Livonia. Hampton. Inglewood. Sterling Heights. Newport News. Irvine. Warren. Portsmouth. Modesto. Mississippi ...... Jackson. Richmond. Moreno Valley. Missouri ...... Independence. Roanoke. Oceanside. Springfield. Washington ...... Spokane. Ontario. Nebraska ...... Lincoln. Tacoma. Orange. Nevada ...... Las Vegas. Wisconsin ...... Madison. Colorado ...... Aurora. Reno.

APPENDIX H TO PART 122.ÐCOUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS

Unincorporated ur- State County banized popu- lation

California ...... Los Angeles ...... 886,780 Sacramento ...... 594,889 San Diego ...... 250,414 Delaware ...... New Castle ...... 296,996 Florida ...... Dade ...... 1,014,504 Georgia ...... DeKalb ...... 448,686 Hawaii ...... Honolulu 1 ...... 114,506 Maryland ...... Anne Arundel ...... 344,654 Baltimore ...... 627,593 Montgomery ...... 599,028

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APPENDIX H TO PART 122.ÐCOUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUSÐContinued

Unincorporated ur- State County banized popu- lation

Prince George's ...... 494,369 Texas ...... Harris ...... 729,206 Utah ...... Salt Lake ...... 270,989 Virginia ...... Fairfax ...... 760,730 Washington ...... King ...... 520,468 1 County was previously listed in this appendix; however, population dropped to below 250,000 in the 1990 Census.

APPENDIX I TO PART 122.ÐCOUNTIES WITH UNINCORPORATED URBANIZED AREAS GREATER THAN 100,000 BUT LESS THAN 250,000 ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS

Unincorporated ur- State County banized popu- lation

Alabama ...... Jefferson ...... 78,608 Arizona ...... Pima ...... 162,202 California ...... Alameda ...... 115,082 Contra Costa ...... 131,082 Kern ...... 128,503 Orange ...... 223,081 Riverside ...... 166,509 San Bernardino ...... 162,202 Colorado ...... Arapahoe ...... 103,248 Florida ...... Broward ...... 142,329 Escambia ...... 167,463 Hillsborough ...... 398,593 Lee ...... 102,337 Manatee ...... 123,828 Orange ...... 378,611 Palm Beach ...... 360,553 Pasco ...... 148,907 Pinellas ...... 255,772 Polk ...... 121,528 Sarasota ...... 172,600 Seminole ...... 127,873 Georgia ...... Clayton ...... 133,237 Cobb ...... 322,595 Fulton ...... 127,776 Gwinnett ...... 237,305 Richmond ...... 126,476 Kentucky ...... Jefferson ...... 239,430 Louisiana ...... East Baton Rouge ...... 102,539 Parish ...... 331,307 Jefferson Parish ...... Maryland ...... Howard ...... 157,972 North Carolina ...... Cumberland ...... 146,827 Nevada ...... Clark ...... 327,618 Oregon ...... Multnomah 1 ...... 52,923 Washington ...... 116,687 South Carolina ...... Greenville ...... 147,464 Richland ...... 130,589 Virginia ...... Arlington ...... 170,936 Chesterfield ...... 174,488 Henrico ...... 201,367 Prince William ...... 157,131 Washington ...... Pierce ...... 258,530 Snohomish ...... 157,218 1 County was previously listed in this appendix; however, population dropped to below 100,000 in the 1990 Census.

PART 123ÐSTATE PROGRAM Authority: The Clean Water Act, 33 U.S.C. semicolon in its place, and by adding REQUIREMENTS 1251 et seq. paragraphs (a)(39) through (a)(45) to 2. Amend § 123.25 by removing the read as follows: 1. The authority citation for part 123 word ‘‘and’’ at the end of paragraph § 123.25 Requirements for permitting. continues to read as follows: (a)(37), by removing the period at the end of paragraph (a)(38) and adding a (a) * * *

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(39) § 122.30 (What are the objectives a watershed or other local basis: tributaries, lakes, and ponds, that of the storm water regulations for small discharge to sensitive waters, high receive a discharge from the MS4 MS4s?); growth or growth potential, high eligible for such a waiver. (40) § 122.31 (For Indian Tribes only) population density, contiguity to an (ii) For all such waters, you have (As a Tribe, what is my role under the urbanized area, significant contributor determined that storm water controls NPDES storm water program?); of pollutants to waters of the United are not needed based on wasteload (41) § 122.32 (As an operator of a States, and ineffective protection of allocations that are part of an EPA small MS4, am I regulated under the water quality by other programs; approved or established TMDL that NPDES storm water program?); (2) Apply such criteria, at a minimum, addresses the pollutant(s) of concern or, (42) § 122.33 (If I am an operator of a to any small MS4 located outside of an if a TMDL has not been developed or regulated small MS4, how do I apply for urbanized area serving a jurisdiction approved, an equivalent analysis that an NPDES permit? When do I have to with a population density of at least determines sources and allocations for apply?); 1,000 people per square mile and a the pollutant(s) of concern. (43) § 122.34 (As an operator of a population of at least 10,000; (iii) For the purpose of paragraph regulated small MS4, what will my (3) Designate any small MS4 that (d)(2)(ii) of this section, the pollutant(s) NPDES MS4 storm water permit meets your criteria by December 9, of concern include biochemical oxygen require?); 2002. You may wait until December 8, demand (BOD), sediment or a parameter (44) § 122.35 (As an operator of a 2004 to apply the designation criteria on that addresses sediment (such as total regulated small MS4, may I share the a watershed basis if you have developed suspended solids, turbidity or siltation), responsibility to implement the a comprehensive watershed plan. You pathogens, oil and grease, and any minimum control measures with other may apply these criteria to make pollutant that has been identified as a entities?); and additional designations at any time, as cause of impairment of any water body (45) § 122.36 (As an operator of a appropriate; and that will receive a discharge from the regulated small MS4, what happens if I (4) Designate any small MS4 that MS4. don’t comply with the application or contributes substantially to the (iv) You have determined that current permit requirements in §§ 122.33 pollutant loadings of a physically and future discharges from the MS4 do through 122.35?). interconnected municipal separate not have the potential to result in * * * * * storm sewer that is regulated by the exceedances of water quality standards, 3. Add § 123.35 to subpart B to read NPDES storm water program. including impairment of designated as follows: (c) You must make a final uses, or other significant water quality determination within 180 days from impacts, including habitat and § 123.35 As the NPDES Permitting receipt of a petition under § 122.26(f) of biological impacts. Authority for regulated small MS4s, what is this chapter (or analogous State or (v) Guidance: To help determine other my role? Tribal law). If you do not do so within significant water quality impacts, EPA (a) You must comply with the that time period, EPA may make a recommends a balanced consideration requirements for all NPDES permitting determination on the petition. of the following criteria on a watershed authorities under Parts 122, 123, 124, (d) You must issue permits consistent or other local basis: discharge to and 125 of this chapter. (This section is with §§ 122.32 through 122.35 of this sensitive waters, high growth or growth meant only to supplement those chapter to all regulated small MS4s. You potential, high population or requirements and discuss specific issues may waive or phase in the requirements commercial density, significant related to the small MS4 storm water otherwise applicable to regulated small contributor of pollutants to waters of the program.) MS4s, as defined in § 122.32(a)(1) of this United States, and ineffective protection (b) You must develop a process, as chapter, under the following of water quality by other programs. well as criteria, to designate small MS4s circumstances: (3) You may phase in permit coverage other than those described in (1) You may waive permit coverage for small MS4s serving jurisdictions § 122.32(a)(1) of this chapter, as for each small MS4s in jurisdictions with a population under 10,000 on a regulated small MS4s to be covered with a population under 1,000 within schedule consistent with a State under the NPDES storm water discharge the urbanized area where all of the watershed permitting approach. Under control program. This process must following criteria have been met: this approach, you must develop and include the authority to designate a (i) Its discharges are not contributing implement a schedule to phase in small MS4 waived under paragraph (d) substantially to the pollutant loadings of permit coverage for approximately 20 of this section if circumstances change. a physically interconnected regulated percent annually of all small MS4s that EPA may make designations under this MS4 (see paragraph (b)(4) of this qualify for such phased-in coverage. section if a State or Tribe fails to comply section); and Under this option, all regulated small with the requirements listed in this (ii) If the small MS4 discharges any MS4s are required to have coverage paragraph. In making designations of pollutant(s) that have been identified as under an NPDES permit by no later than small MS4s, you must: a cause of impairment of any water body March 8, 2007. Your schedule for (1)(i) Develop criteria to evaluate to which it discharges, storm water phasing in permit coverage for small whether a storm water discharge results controls are not needed based on MS4s must be approved by the Regional in or has the potential to result in wasteload allocations that are part of an Administrator no later than December exceedances of water quality standards, EPA approved or established ‘‘total 10, 2001. including impairment of designated maximum daily load’’ (TMDL) that (4) If you choose to phase in permit uses, or other significant water quality address the pollutant(s) of concern. coverage for small MS4s in jurisdictions impacts, including habitat and (2) You may waive permit coverage with a population under 10,000, in biological impacts. for each small MS4 in jurisdictions with accordance with paragraph (d)(3) of this (ii) Guidance: For determining other a population under 10,000 where all of section, you may also provide waivers significant water quality impacts, EPA the following criteria have been met: in accordance with paragraphs (d)(1) recommends a balanced consideration (i) You have evaluated all waters of and (d)(2) of this section pursuant to of the following designation criteria on the U.S., including small streams, your approved schedule.

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(5) If you do not have an approved measures specified in § 122.34(b) of this (vi) You are encouraged to provide a schedule for phasing in permit coverage, chapter. EPA plans to develop a menu brief (e.g., two page) reporting format to you must make a determination whether of BMPs that will apply in each State or facilitate compiling and analyzing data to issue an NPDES permit or allow a Tribe that has not developed its own from submitted reports under waiver in accordance with paragraph menu. Regardless of whether a menu of § 122.34(g)(3) of this chapter. EPA (d)(1) or (d)(2) of this section, for each BMPs has been developed by EPA, EPA intends to develop a model form for this eligible MS4 by December 9, 2002. encourages State and Tribal permitting purpose. (6) You must periodically review any authorities to develop a menu of BMPs waivers granted in accordance with that is appropriate for local conditions. PART 124ÐPROCEDURES FOR paragraph (d)(2) of this section to EPA also intends to provide guidance DECISIONMAKING determine whether any of the on developing BMPs and measurable 1. The authority citation for part 124 information required for granting the goals and modify, update, and continues to read as follows: waiver has changed. At a minimum, you supplement such guidance based on the must conduct such a review once every assessments of the NPDES MS4 storm Authority: Resource Conservation and five years. In addition, you must water program and research to be Recovery Act, 42 U.S.C. 6901 et seq.; Safe consider any petition to review any Drinking Water Act, 42 U.S.C. 300(f) et seq.; conducted over the next thirteen years. Clean Water Act, 33 U.S.C. 1251 et seq.; waiver when the petitioner provides (h)(1) You must incorporate any Clean Air Act, 42 U.S.C. 7401 et seq. evidence that the information required additional measures necessary to ensure for granting the waiver has substantially effective implementation of your State 2. Revise § 124.52(c) to read as changed. or Tribal storm water program for follows: (e) You must specify a time period of regulated small MS4s. § 124.52 Permits required on a case-by- up to 5 years from the date of permit (2) Guidance: EPA recommends case basis. issuance for operators of regulated small consideration of the following: * * * * * MS4s to fully develop and implement (i) You are encouraged to use a (c) Prior to a case-by-case their storm water program. general permit for regulated small MS4s; determination that an individual permit (f) You must include the requirements is required for a storm water discharge in §§ 122.33 through 122.35 of this (ii) To the extent that your State or under this section (see § 122.26(a)(1)(v), chapter in any permit issued for Tribe administers a dedicated funding (c)(1)(v), and (a)(9)(iii) of this chapter), regulated small MS4s or develop permit source, you should play an active role the Regional Administrator may require limits based on a permit application in providing financial assistance to the discharger to submit a permit submitted by a regulated small MS4. operators of regulated small MS4s; application or other information (You may include conditions in a (iii) You should support local regarding the discharge under section regulated small MS4 NPDES permit that programs by providing technical and 308 of the CWA. In requiring such direct the MS4 to follow an existing programmatic assistance, conducting information, the Regional Administrator qualifying local program’s requirements, research projects, performing watershed shall notify the discharger in writing as a way of complying with some or all monitoring, and providing adequate and shall send an application form with of the requirements in § 122.34(b) of this legal authority at the local level; the notice. The discharger must apply chapter. See § 122.34(c) of this chapter. (iv) You are encouraged to coordinate for a permit within 180 days of notice, Qualifying local, State or Tribal program and utilize the data collected under unless permission for a later date is requirements must impose, at a several programs including water granted by the Regional Administrator. minimum, the relevant requirements of quality management programs, TMDL The question whether the initial § 122.34(b) of this chapter.) programs, and water quality monitoring designation was proper will remain (g) If you issue a general permit to programs; open for consideration during the public authorize storm water discharges from (v) Where appropriate, you may comment period under § 124.11 or small MS4s, you must make available a recognize existing responsibilities § 124.118 and in any subsequent menu of BMPs to assist regulated small among governmental entities for the hearing. MS4s in the design and implementation control measures in an NPDES small of municipal storm water management MS4 permit (see § 122.35(b) of this [FR Doc. 99–29181 Filed 12–7–99; 8:45 am] programs to implement the minimum chapter); and BILLING CODE 6560±50±P

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§ 122.26 Storm water discharges (appli- runoff and which are not contaminated cable to State NPDES programs, see by contact with or that have not come § 123.25). into contact with, any overburden, raw (a) Permit requirement. (1) Prior to Oc- material, intermediate products, fin- tober 1, 1994, discharges composed en- ished product, byproduct, or waste tirely of storm water shall not be re- products located on the site of such op- quired to obtain a NPDES permit ex- erations, except in accordance with cept: paragraph (c)(1)(iv) of this section. (i) A discharge with respect to which (ii) All field activities or operations a permit has been issued prior to Feb- associated with oil and gas exploration, ruary 4, 1987; production, processing, or treatment (ii) A discharge associated with in- operations or transmission facilities, dustrial activity (see § 122.26(a)(4)); including activities necessary to pre- (iii) A discharge from a large munic- pare a site for drilling and for the ipal separate storm sewer system; movement and placement of drilling (iv) A discharge from a medium mu- equipment, whether or not such field nicipal separate storm sewer system; activities or operations may be consid- (v) A discharge which the Director, ered to be construction activities, ex- or in States with approved NPDES pro- cept in accordance with paragraph grams, either the Director or the EPA (c)(1)(iii) of this section. Discharges of Regional Administrator, determines to sediment from construction activities contribute to a violation of a water associated with oil and gas exploration, quality standard or is a significant production, processing, or treatment contributor of pollutants to waters of operations or transmission facilities the United States. This designation are not subject to the provisions of may include a discharge from any con- paragraph (c)(1)(iii)(C) of this section. veyance or system of conveyances used for collecting and conveying storm NOTE TO PARAGRAPH (a)(2)(ii): EPA encour- water runoff or a system of discharges ages operators of oil and gas field activities from municipal separate storm sewers, or operations to implement and maintain except for those discharges from con- Best Management Practices (BMPs) to mini- mize discharges of pollutants, including sedi- veyances which do not require a permit ment, in storm water both during and after under paragraph (a)(2) of this section construction activities to help ensure protec- or agricultural storm water runoff tion of surface water quality during storm which is exempted from the definition events. Appropriate controls would be those of point source at § 122.2. suitable to the site conditions and consistent The Director may designate discharges with generally accepted engineering design criteria and manufacturer specifications. Se- from municipal separate storm sewers lection of BMPs could also be affected by on a system-wide or jurisdiction-wide seasonal or climate conditions. basis. In making this determination the Director may consider the fol- (3) Large and medium municipal sepa- lowing factors: rate storm sewer systems. (i) Permits (A) The location of the discharge must be obtained for all discharges with respect to waters of the United from large and medium municipal sep- States as defined at 40 CFR 122.2. arate storm sewer systems. (B) The size of the discharge; (ii) The Director may either issue one (C) The quantity and nature of the system-wide permit covering all dis- pollutants discharged to waters of the charges from municipal separate storm United States; and sewers within a large or medium mu- (D) Other relevant factors. nicipal storm sewer system or issue (2) The Director may not require a distinct permits for appropriate cat- permit for discharges of storm water egories of discharges within a large or runoff from the following: medium municipal separate storm (i) Mining operations composed en- sewer system including, but not lim- tirely of flows which are from convey- ited to: all discharges owned or oper- ances or systems of conveyances (in- ated by the same municipality; located cluding but not limited to pipes, con- within the same jurisdiction; all dis- duits, ditches, and channels) used for charges within a system that discharge collecting and conveying precipitation to the same watershed; discharges

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within a system that are similar in na- that are issued on a system-wide, juris- ture; or for individual discharges from diction-wide, watershed or other basis municipal separate storm sewers with- may specify different conditions relat- in the system. ing to different discharges covered by (iii) The operator of a discharge from the permit, including different man- a municipal separate storm sewer agement programs for different drain- which is part of a large or medium mu- age areas which contribute storm nicipal separate storm sewer system water to the system. must either: (vi) Co-permittees need only comply (A) Participate in a permit applica- with permit conditions relating to dis- tion (to be a permittee or a co-per- charges from the municipal separate mittee) with one or more other opera- storm sewers for which they are opera- tors of discharges from the large or me- tors. dium municipal storm sewer system (4) Discharges through large and me- which covers all, or a portion of all, dium municipal separate storm sewer sys- discharges from the municipal separate tems. In addition to meeting the re- storm sewer system; quirements of paragraph (c) of this sec- (B) Submit a distinct permit applica- tion, an operator of a storm water dis- tion which only covers discharges from charge associated with industrial ac- the municipal separate storm sewers tivity which discharges through a large for which the operator is responsible; or medium municipal separate storm or sewer system shall submit, to the oper- (C) A regional authority may be re- ator of the municipal separate storm sponsible for submitting a permit ap- sewer system receiving the discharge plication under the following guide- no later than May 15, 1991, or 180 days lines: prior to commencing such discharge: (1) The regional authority together the name of the facility; a contact per- with co-applicants shall have authority son and phone number; the location of over a storm water management pro- the discharge; a description, including gram that is in existence, or shall be in Standard Industrial Classification, existence at the time part 1 of the ap- which best reflects the principal prod- plication is due; ucts or services provided by each facil- (2) The permit applicant or co-appli- ity; and any existing NPDES permit cants shall establish their ability to number. make a timely submission of part 1 and (5) Other municipal separate storm sew- part 2 of the municipal application; ers. The Director may issue permits for (3) Each of the operators of municipal municipal separate storm sewers that separate storm sewers within the sys- are designated under paragraph tems described in paragraphs (b)(4) (i), (a)(1)(v) of this section on a system- (ii), and (iii) or (b)(7) (i), (ii), and (iii) of wide basis, jurisdiction-wide basis, wa- this section, that are under the pur- tershed basis or other appropriate view of the designated regional author- basis, or may issue permits for indi- ity, shall comply with the application vidual discharges. requirements of paragraph (d) of this (6) Non-municipal separate storm sew- section. ers. For storm water discharges associ- (iv) One permit application may be ated with industrial activity from submitted for all or a portion of all point sources which discharge through municipal separate storm sewers with- a non-municipal or non-publicly owned in adjacent or interconnected large or separate storm sewer system, the Di- medium municipal separate storm rector, in his discretion, may issue: a sewer systems. The Director may issue single NPDES permit, with each dis- one system-wide permit covering all, charger a co-permittee to a permit or a portion of all municipal separate issued to the operator of the portion of storm sewers in adjacent or inter- the system that discharges into waters connected large or medium municipal of the United States; or, individual per- separate storm sewer systems. mits to each discharger of storm water (v) Permits for all or a portion of all associated with industrial activity discharges from large or medium mu- through the non-municipal conveyance nicipal separate storm sewer systems system.

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(i) All storm water discharges associ- (D) The Director, or in States with ated with industrial activity that dis- approved NPDES programs either the charge through a storm water dis- Director or the EPA Regional Adminis- charge system that is not a municipal trator, determines that the discharge, separate storm sewer must be covered or category of discharges within a geo- by an individual permit, or a permit graphic area, contributes to a violation issued to the operator of the portion of of a water quality standard or is a sig- the system that discharges to waters of nificant contributor of pollutants to the United States, with each dis- waters of the United States. charger to the non-municipal convey- (ii) Operators of small MS4s des- ance a co-permittee to that permit. ignated pursuant to paragraphs (ii) Where there is more than one op- (a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) erator of a single system of such con- of this section shall seek coverage veyances, all operators of storm water under an NPDES permit in accordance discharges associated with industrial with §§ 122.33 through 122.35. Operators activity must submit applications. of non-municipal sources designated (iii) Any permit covering more than pursuant to paragraphs (a)(9)(i)(B), one operator shall identify the effluent (a)(9)(i)(C), and (a)(9)(i)(D) of this sec- limitations, or other permit condi- tion shall seek coverage under an tions, if any, that apply to each oper- NPDES permit in accordance with ator. paragraph (c)(1) of this section. (7) Combined sewer systems. Convey- (iii) Operators of storm water dis- ances that discharge storm water run- charges designated pursuant to para- off combined with municipal sewage graphs (a)(9)(i)(C) and (a)(9)(i)(D) of are point sources that must obtain this section shall apply to the Director NPDES permits in accordance with the for a permit within 180 days of receipt procedures of § 122.21 and are not sub- of notice, unless permission for a later ject to the provisions of this section. date is granted by the Director (see (8) Whether a discharge from a mu- § 124.52(c) of this chapter). nicipal separate storm sewer is or is (b) Definitions. (1) Co-permittee means not subject to regulation under this a permittee to a NPDES permit that is section shall have no bearing on wheth- only responsible for permit conditions er the owner or operator of the dis- relating to the discharge for which it is charge is eligible for funding under operator. title II, title III or title VI of the Clean Water Act. See 40 CFR part 35, subpart (2) Illicit discharge means any dis- I, appendix A(b)H.2.j. charge to a municipal separate storm (9)(i) On and after October 1, 1994, for sewer that is not composed entirely of discharges composed entirely of storm storm water except discharges pursu- water, that are not required by para- ant to a NPDES permit (other than the graph (a)(1) of this section to obtain a NPDES permit for discharges from the permit, operators shall be required to municipal separate storm sewer) and obtain a NPDES permit only if: discharges resulting from fire fighting (A) The discharge is from a small activities. MS4 required to be regulated pursuant (3) Incorporated place means the Dis- to § 122.32; trict of Columbia, or a city, town, (B) The discharge is a storm water township, or village that is incor- discharge associated with small con- porated under the laws of the State in struction activity pursuant to para- which it is located. graph (b)(15) of this section; (4) Large municipal separate storm (C) The Director, or in States with sewer system means all municipal sepa- approved NPDES programs either the rate storm sewers that are either: Director or the EPA Regional Adminis- (i) Located in an incorporated place trator, determines that storm water with a population of 250,000 or more as controls are needed for the discharge determined by the 1990 Decennial Cen- based on wasteload allocations that are sus by the Bureau of the Census (Ap- part of ‘‘total maximum daily loads’’ pendix F of this part); or (TMDLs) that address the pollutant(s) (ii) Located in the counties listed in of concern; or appendix H, except municipal separate

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storm sewers that are located in the in- lent (discharge from other than a cir- corporated places, townships or towns cular pipe associated with a drainage within such counties; or area of 2 acres or more). (iii) Owned or operated by a munici- (6) Major outfall means a major mu- pality other than those described in nicipal separate storm sewer outfall. paragraph (b)(4) (i) or (ii) of this sec- (7) Medium municipal separate storm tion and that are designated by the Di- sewer system means all municipal sepa- rector as part of the large or medium rate storm sewers that are either: municipal separate storm sewer system (i) Located in an incorporated place due to the interrelationship between with a population of 100,000 or more but the discharges of the designated storm less than 250,000, as determined by the sewer and the discharges from munic- 1990 Decennial Census by the Bureau of ipal separate storm sewers described the Census (Appendix G of this part); or under paragraph (b)(4) (i) or (ii) of this (ii) Located in the counties listed in section. In making this determination appendix I, except municipal separate the Director may consider the fol- storm sewers that are located in the in- lowing factors: corporated places, townships or towns (A) Physical interconnections be- within such counties; or tween the municipal separate storm (iii) Owned or operated by a munici- sewers; pality other than those described in (B) The location of discharges from paragraph (b)(7) (i) or (ii) of this sec- the designated municipal separate tion and that are designated by the Di- storm sewer relative to discharges rector as part of the large or medium from municipal separate storm sewers municipal separate storm sewer system described in paragraph (b)(4)(i) of this due to the interrelationship between section; the discharges of the designated storm (C) The quantity and nature of pol- sewer and the discharges from munic- lutants discharged to waters of the ipal separate storm sewers described United States; under paragraph (b)(7) (i) or (ii) of this (D) The nature of the receiving section. In making this determination waters; and the Director may consider the fol- (E) Other relevant factors; or lowing factors: (iv) The Director may, upon petition, (A) Physical interconnections be- designate as a large municipal separate tween the municipal separate storm storm sewer system, municipal sepa- sewers; rate storm sewers located within the boundaries of a region defined by a (B) The location of discharges from storm water management regional au- the designated municipal separate thority based on a jurisdictional, wa- storm sewer relative to discharges tershed, or other appropriate basis that from municipal separate storm sewers includes one or more of the systems de- described in paragraph (b)(7)(i) of this scribed in paragraph (b)(4) (i), (ii), (iii) section; of this section. (C) The quantity and nature of pol- (5) Major municipal separate storm lutants discharged to waters of the sewer outfall (or ‘‘major outfall’’) means United States; a municipal separate storm sewer out- (D) The nature of the receiving fall that discharges from a single pipe waters; or with an inside diameter of 36 inches or (E) Other relevant factors; or more or its equivalent (discharge from (iv) The Director may, upon petition, a single conveyance other than circular designate as a medium municipal sepa- pipe which is associated with a drain- rate storm sewer system, municipal age area of more than 50 acres); or for separate storm sewers located within municipal separate storm sewers that the boundaries of a region defined by a receive storm water from lands zoned storm water management regional au- for industrial activity (based on com- thority based on a jurisdictional, wa- prehensive zoning plans or the equiva- tershed, or other appropriate basis that lent), an outfall that discharges from a includes one or more of the systems de- single pipe with an inside diameter of scribed in paragraphs (b)(7) (i), (ii), (iii) 12 inches or more or from its equiva- of this section.

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(8) Municipal separate storm sewer of SARA; fertilizers; pesticides; and means a conveyance or system of con- waste products such as ashes, slag and veyances (including roads with drain- sludge that have the potential to be re- age systems, municipal streets, catch leased with storm water discharges. basins, curbs, gutters, ditches, man- (13) Storm water means storm water made channels, or storm drains): runoff, snow melt runoff, and surface (i) Owned or operated by a State, runoff and drainage. city, town, borough, county, parish, (14) Storm water discharge associated district, association, or other public with industrial activity means the dis- body (created by or pursuant to State charge from any conveyance that is law) having jurisdiction over disposal used for collecting and conveying of sewage, industrial wastes, storm storm water and that is directly re- water, or other wastes, including spe- lated to manufacturing, processing or cial districts under State law such as a raw materials storage areas at an in- sewer district, flood control district or dustrial plant. The term does not in- drainage district, or similar entity, or clude discharges from facilities or ac- an Indian tribe or an authorized Indian tivities excluded from the NPDES pro- tribal organization, or a designated and gram under this part 122. For the cat- approved management agency under egories of industries identified in this section 208 of the CWA that discharges section, the term includes, but is not to waters of the United States; limited to, storm water discharges (ii) Designed or used for collecting or from industrial plant yards; immediate conveying storm water; access roads and rail lines used or trav- (iii) Which is not a combined sewer; eled by carriers of raw materials, man- and ufactured products, waste material, or (iv) Which is not part of a Publicly by-products used or created by the fa- Owned Treatment Works (POTW) as de- cility; material handling sites; refuse fined at 40 CFR 122.2. sites; sites used for the application or (9) Outfall means a point source as de- disposal of process waste waters (as de- fined by 40 CFR 122.2 at the point where fined at part 401 of this chapter); sites a municipal separate storm sewer dis- used for the storage and maintenance charges to waters of the United States of material handling equipment; sites and does not include open conveyances used for residual treatment, storage, or connecting two municipal separate disposal; shipping and receiving areas; storm sewers, or pipes, tunnels or other manufacturing buildings; storage areas conveyances which connect segments (including tank farms) for raw mate- of the same stream or other waters of rials, and intermediate and final prod- the United States and are used to con- ucts; and areas where industrial activ- vey waters of the United States. ity has taken place in the past and sig- (10) Overburden means any material nificant materials remain and are ex- of any nature, consolidated or uncon- posed to storm water. For the purposes solidated, that overlies a mineral de- of this paragraph, material handling posit, excluding topsoil or similar nat- activities include storage, loading and urally-occurring surface materials that unloading, transportation, or convey- are not disturbed by mining oper- ance of any raw material, intermediate ations. product, final product, by-product or (11) Runoff coefficient means the frac- waste product. The term excludes areas tion of total rainfall that will appear located on plant lands separate from at a conveyance as runoff. the plant’s industrial activities, such (12) Significant materials includes, but as office buildings and accompanying is not limited to: raw materials; fuels; parking lots as long as the drainage materials such as solvents, detergents, from the excluded areas is not mixed and plastic pellets; finished materials with storm water drained from the such as metallic products; raw mate- above described areas. Industrial facili- rials used in food processing or produc- ties (including industrial facilities that tion; hazardous substances designated are federally, State, or municipally under section 101(14) of CERCLA; any owned or operated that meet the de- chemical the facility is required to re- scription of the facilities listed in para- port pursuant to section 313 of title III graphs (b)(14)(i) through (xi) of this

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section) include those facilities des- (v) Landfills, land application sites, ignated under the provisions of para- and open dumps that receive or have graph (a)(1)(v) of this section. The fol- received any industrial wastes (waste lowing categories of facilities are con- that is received from any of the facili- sidered to be engaging in ‘‘industrial ties described under this subsection) activity’’ for purposes of paragraph including those that are subject to reg- (b)(14): ulation under subtitle D of RCRA; (i) Facilities subject to storm water (vi) Facilities involved in the recy- effluent limitations guidelines, new cling of materials, including metal source performance standards, or toxic scrapyards, battery reclaimers, salvage pollutant effluent standards under 40 yards, and automobile junkyards, in- CFR subchapter N (except facilities cluding but limited to those classified with toxic pollutant effluent standards as Standard Industrial Classification which are exempted under category (xi) 5015 and 5093; in paragraph (b)(14) of this section); (vii) Steam electric power generating (ii) Facilities classified as Standard facilities, including coal handling sites; Industrial Classifications 24 (except (viii) Transportation facilities classi- 2434), 26 (except 265 and 267), 28 (except fied as Standard Industrial Classifica- 283), 29, 31l, 32 (except 323), 33, 344l, 373; tions 40, 41, 42 (except 4221–25), 43, 44, (iii) Facilities classified as Standard 45, and 5171 which have vehicle mainte- Industrial Classifications 10 through 14 nance shops, equipment cleaning oper- (mineral industry) including active or ations, or airport deicing operations. inactive mining operations (except for Only those portions of the facility that areas of coal mining operations no are either involved in vehicle mainte- longer meeting the definition of a rec- nance (including vehicle rehabilitation, lamation area under 40 CFR 434.11(1) mechanical repairs, painting, fueling, because the performance bond issued to and lubrication), equipment cleaning the facility by the appropriate SMCRA operations, airport deicing operations, authority has been released, or except or which are otherwise identified under for areas of non-coal mining operations paragraphs (b)(14) (i)–(vii) or (ix)–(xi) of which have been released from applica- this section are associated with indus- ble State or Federal reclamation re- quirements after December 17, 1990) trial activity; and oil and gas exploration, produc- (ix) Treatment works treating do- tion, processing, or treatment oper- mestic sewage or any other sewage ations, or transmission facilities that sludge or wastewater treatment device discharge storm water contaminated or system, used in the storage treat- by contact with or that has come into ment, recycling, and reclamation of contact with, any overburden, raw ma- municipal or domestic sewage, includ- terial, intermediate products, finished ing land dedicated to the disposal of products, byproducts or waste products sewage sludge that are located within located on the site of such operations; the confines of the facility, with a de- (inactive mining operations are mining sign flow of 1.0 mgd or more, or re- sites that are not being actively mined, quired to have an approved but which have an identifiable owner/ pretreatment program under 40 CFR operator; inactive mining sites do not part 403. Not included are farm lands, include sites where mining claims are domestic gardens or lands used for being maintained prior to disturbances sludge management where sludge is associated with the extraction, beneficially reused and which are not beneficiation, or processing of mined physically located in the confines of materials, nor sites where minimal ac- the facility, or areas that are in com- tivities are undertaken for the sole pliance with section 405 of the CWA; purpose of maintaining a mining (x) Construction activity including claim); clearing, grading and excavation, ex- (iv) Hazardous waste treatment, stor- cept operations that result in the dis- age, or disposal facilities, including turbance of less than five acres of total those that are operating under interim land area. Construction activity also status or a permit under subtitle C of includes the disturbance of less than RCRA; five acres of total land area that is a

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part of a larger common plan of devel- EPA Water Docket , 401 M Street SW, opment or sale if the larger common Washington, DC 20460, or at the Na- plan will ultimately disturb five acres tional Archives and Records Adminis- or more; tration (NARA). For information on (xi) Facilities under Standard Indus- the availability of this material at trial Classifications 20, 21, 22, 23, 2434, NARA, call 202–741–6030, or go to: http:// 25, 265, 267, 27, 283, 285, 30, 31 (except www.archives.gov/federallregister/ 311), 323, 34 (except 3441), 35, 36, 37 (ex- codeloflfederallregulations/ cept 373), 38, 39, and 4221–25; ibrllocations.html. An operator must (15) Storm water discharge associated certify to the Director that the con- with small construction activity means struction activity will take place dur- the discharge of storm water from: ing a period when the value of the rain- (i) Construction activities including fall erosivity factor is less than five; or clearing, grading, and excavating that (B) Storm water controls are not result in land disturbance of equal to needed based on a ‘‘total maximum or greater than one acre and less than daily load’’ (TMDL) approved or estab- five acres. Small construction activity lished by EPA that addresses the pol- also includes the disturbance of less lutant(s) of concern or, for non-im- than one acre of total land area that is paired waters that do not require part of a larger common plan of devel- TMDLs, an equivalent analysis that de- opment or sale if the larger common termines allocations for small con- plan will ultimately disturb equal to or struction sites for the pollutant(s) of greater than one and less than five concern or that determines that such acres. Small construction activity does allocations are not needed to protect not include routine maintenance that water quality based on consideration of is performed to maintain the original existing in-stream concentrations, ex- line and grade, hydraulic capacity, or pected growth in pollutant contribu- original purpose of the facility. The Di- tions from all sources, and a margin of rector may waive the otherwise appli- safety. For the purpose of this para- cable requirements in a general permit graph, the pollutant(s) of concern in- for a storm water discharge from con- clude sediment or a parameter that ad- struction activities that disturb less dresses sediment (such as total sus- than five acres where: pended solids, turbidity or siltation) (A) The value of the rainfall erosivity and any other pollutant that has been factor (‘‘R’’ in the Revised Universal identified as a cause of impairment of Soil Loss Equation) is less than five any water body that will receive a dis- during the period of construction activ- charge from the construction activity. ity. The rainfall erosivity factor is de- The operator must certify to the Direc- termined in accordance with Chapter 2 tor that the construction activity will of Agriculture Handbook Number 703, take place, and storm water discharges Predicting Soil Erosion by Water: A Guide will occur, within the drainage area ad- to Conservation Planning With the Re- dressed by the TMDL or equivalent vised Universal Soil Loss Equation analysis. (RUSLE), pages 21–64, dated January (ii) Any other construction activity 1997. The Director of the Federal Reg- designated by the Director, or in ister approves this incorporation by States with approved NPDES programs reference in accordance with 5 U.S.C either the Director or the EPA Re- 552(a) and 1 CFR part 51. Copies may be gional Administrator, based on the po- obtained from EPA’s Water Resource tential for contribution to a violation Center, Mail Code RC4100, 401 M St. of a water quality standard or for sig- SW, Washington, DC 20460. A copy is nificant contribution of pollutants to also available for inspection at the U.S. waters of the United States.

EXHIBIT 1 TO § 122.26(B)(15)—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCIATED WITH SMALL CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM

Automatic Designation: Required • Construction activities that result in a land disturbance of equal to or Nationwide Coverage. greater than one acre and less than five acres.

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EXHIBIT 1 TO § 122.26(B)(15)—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCI- ATED WITH SMALL CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM— Continued • Construction activities disturbing less than one acre if part of a larger common plan of development or sale with a planned disturbance of equal to or greater than one acre and less than five acres. (see § 122.26(b)(15)(i).) Potential Designation: Optional Eval- • Construction activities that result in a land disturbance of less than uation and Designation by the one acre based on the potential for contribution to a violation of a NPDES Permitting Authority or water quality standard or for significant contribution of pollutants. EPA Regional Administrator. (see § 122.26(b)(15)(ii).) Potential Waiver: Waiver from Re- Any automatically designated construction activity where the operator quirements as Determined by the certifies: (1) A rainfall erosivity factor of less than five, or (2) That the NPDES Permitting Authority.. activity will occur within an area where controls are not needed based on a TMDL or, for non-impaired waters that do not require a TMDL, an equivalent analysis for the pollutant(s) of concern. (see § 122.26(b)(15)(i).)

(16) Small municipal separate storm storm sewer systems pursuant to para- sewer system means all separate storm graphs (b)(4), (b)(7), and (b)(16) of this sewers that are: section, or designated under paragraph (i) Owned or operated by the United (a)(1)(v) of this section. States, a State, city, town, borough, (19) MS4 means a municipal separate county, parish, district, association, or storm sewer system. other public body (created by or pursu- (20) Uncontrolled sanitary landfill ant to State law) having jurisdiction means a landill or open dump, whether over disposal of sewage, industrial in operation or closed, that does not wastes, storm water, or other wastes, meet the requirements for runon or including special districts under State runoff controls established pursuant to law such as a sewer district, flood con- subtitle D of the Solid Waste Disposal trol district or drainage district, or Act. similar entity, or an Indian tribe or an (c) Application requirements for storm authorized Indian tribal organization, water discharges associated with indus- or a designated and approved manage- trial activity and storm water discharges ment agency under section 208 of the associated with small construction activ- CWA that discharges to waters of the ity—(1) Individual application. Dis- United States. chargers of storm water associated (ii) Not defined as ‘‘large’’ or ‘‘me- with industrial activity and with small dium’’ municipal separate storm sewer construction activity are required to systems pursuant to paragraphs (b)(4) apply for an individual permit or seek and (b)(7) of this section, or designated coverage under a promulgated storm under paragraph (a)(1)(v) of this sec- water general permit. Facilities that tion. are required to obtain an individual (iii) This term includes systems simi- permit or any dischage of storm water lar to separate storm sewer systems in which the Director is evaluating for municipalities, such as systems at designation (see § 124.52(c) of this chap- military bases, large hospital or prison ter) under paragraph (a)(1)(v) of this complexes, and highways and other section and is not a municipal storm thoroughfares. The term does not in- sewer, shall submit an NPDES applica- clude separate storm sewers in very tion in accordance with the require- discrete areas, such as individual build- ments of § 122.21 as modified and sup- ings. plemented by the provisions of this (17) Small MS4 means a small munic- paragraph. ipal separate storm sewer system. (i) Except as provided in § 122.26(c)(1) (18) Municipal separate storm sewer sys- (ii)–(iv), the operator of a storm water tem means all separate storm sewers discharge associated with industrial that are defined as ‘‘large’’ or ‘‘me- activity subject to this section shall dium’’ or ‘‘small’’ municipal separate provide:

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(A) A site map showing topography the presence of non-storm water dis- (or indicating the outline of drainage charges which are not covered by a areas served by the outfall(s) covered NPDES permit; tests for such non- in the application if a topographic map storm water discharges may include is unavailable) of the facility includ- smoke tests, fluorometric dye tests, ing: each of its drainage and discharge analysis of accurate schematics, as structures; the drainage area of each well as other appropriate tests. The storm water outfall; paved areas and certification shall include a description buildings within the drainage area of of the method used, the date of any each storm water outfall, each past or testing, and the on-site drainage points present area used for outdoor storage that were directly observed during a or disposal of significant materials, test; each existing structural control meas- (D) Existing information regarding ure to reduce pollutants in storm water significant leaks or spills of toxic or runoff, materials loading and access hazardous pollutants at the facility areas, areas where pesticides, herbi- that have taken place within the three cides, soil conditioners and fertilizers years prior to the submittal of this ap- are applied, each of its hazardous waste plication; treatment, storage or disposal facili- (E) Quantitative data based on sam- ties (including each area not required ples collected during storm events and to have a RCRA permit which is used collected in accordance with § 122.21 of for accumulating hazardous waste this part from all outfalls containing a under 40 CFR 262.34); each well where storm water discharge associated with fluids from the facility are injected un- industrial activity for the following pa- derground; springs, and other surface rameters: water bodies which receive storm water (1) Any pollutant limited in an efflu- discharges from the facility; ent guideline to which the facility is (B) An estimate of the area of imper- subject; vious surfaces (including paved areas (2) Any pollutant listed in the facili- and building roofs) and the total area ty’s NPDES permit for its process drained by each outfall (within a mile wastewater (if the facility is operating radius of the facility) and a narrative under an existing NPDES permit); description of the following: Signifi- (3) Oil and grease, pH, BOD5, COD, cant materials that in the three years TSS, total phosphorus, total Kjeldahl prior to the submittal of this applica- nitrogen, and nitrate plus nitrite nitro- tion have been treated, stored or dis- gen; posed in a manner to allow exposure to (4) Any information on the discharge storm water; method of treatment, required under § 122.21(g)(7)(vi) and storage or disposal of such materials; (vii); materials management practices em- (5) Flow measurements or estimates ployed, in the three years prior to the of the flow rate, and the total amount submittal of this application, to mini- of discharge for the storm event(s) mize contact by these materials with sampled, and the method of flow meas- storm water runoff; materials loading urement or estimation; and and access areas; the location, manner (6) The date and duration (in hours) and frequency in which pesticides, her- of the storm event(s) sampled, rainfall bicides, soil conditioners and fertilizers measurements or estimates of the are applied; the location and a descrip- storm event (in inches) which gen- tion of existing structural and non- erated the sampled runoff and the du- structural control measures to reduce ration between the storm event sam- pollutants in storm water runoff; and a pled and the end of the previous meas- description of the treatment the storm urable (greater than 0.1 inch rainfall) water receives, including the ultimate storm event (in hours); disposal of any solid or fluid wastes (F) Operators of a discharge which is other than by discharge; composed entirely of storm water are (C) A certification that all outfalls exempt from the requirements of that should contain storm water dis- § 122.21 (g)(2), (g)(3), (g)(4), (g)(5), charges associated with industrial ac- (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and tivity have been tested or evaluated for (g)(7)(viii); and

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(G) Operators of new sources or new completed, the nature of fill material discharges (as defined in § 122.2 of this and existing data describing the soil or part) which are composed in part or en- the quality of the discharge; and tirely of storm water must include es- (F) The name of the receiving water. timates for the pollutants or param- (iii) The operator of an existing or eters listed in paragraph (c)(1)(i)(E) of new discharge composed entirely of this section instead of actual sampling storm water from an oil or gas explo- data, along with the source of each es- ration, production, processing, or timate. Operators of new sources or treatment operation, or transmission new discharges composed in part or en- facility is not required to submit a per- tirely of storm water must provide mit application in accordance with quantitative data for the parameters paragraph (c)(1)(i) of this section, un- listed in paragraph (c)(1)(i)(E) of this less the facility: section within two years after com- (A) Has had a discharge of storm mencement of discharge, unless such water resulting in the discharge of a data has already been reported under reportable quantity for which notifica- the monitoring requirements of the tion is or was required pursuant to 40 NPDES permit for the discharge. Oper- CFR 117.21 or 40 CFR 302.6 at anytime ators of a new source or new discharge since November 16, 1987; or which is composed entirely of storm (B) Has had a discharge of storm water are exempt from the require- water resulting in the discharge of a ments of § 122.21 (k)(3)(ii), (k)(3)(iii), reportable quantity for which notifica- and (k)(5). tion is or was required pursuant to 40 (ii) An operator of an existing or new CFR 110.6 at any time since November storm water discharge that is associ- 16, 1987; or ated with industrial activity solely (C) Contributes to a violation of a under paragraph (b)(14)(x) of this sec- water quality standard. tion or is associated with small con- (iv) The operator of an existing or struction activity solely under para- new discharge composed entirely of graph (b)(15) of this section, is exempt storm water from a mining operation is from the requirements of § 122.21(g) and not required to submit a permit appli- paragraph (c)(1)(i) of this section. Such cation unless the discharge has come operator shall provide a narrative de- into contact with, any overburden, raw scription of: material, intermediate products, fin- (A) The location (including a map) ished product, byproduct or waste and the nature of the construction ac- products located on the site of such op- tivity; erations. (B) The total area of the site and the (v) Applicants shall provide such area of the site that is expected to un- other information the Director may dergo excavation during the life of the reasonably require under § 122.21(g)(13) permit; of this part to determine whether to (C) Proposed measures, including issue a permit and may require any fa- best management practices, to control cility subject to paragraph (c)(1)(ii) of pollutants in storm water discharges this section to comply with paragraph during construction, including a brief (c)(1)(i) of this section. description of applicable State and (2) [Reserved] local erosion and sediment control re- (d) Application requirements for large quirements; and medium municipal separate storm (D) Proposed measures to control pol- sewer discharges. The operator of a dis- lutants in storm water discharges that charge from a large or medium munic- will occur after construction oper- ipal separate storm sewer or a munic- ations have been completed, including ipal separate storm sewer that is des- a brief description of applicable State ignated by the Director under para- or local erosion and sediment control graph (a)(1)(v) of this section, may sub- requirements; mit a jurisdiction-wide or system-wide (E) An estimate of the runoff coeffi- permit application. Where more than cient of the site and the increase in im- one public entity owns or operates a pervious area after the construction municipal separate storm sewer within addressed in the permit application is a geographic area (including adjacent

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or interconnected municipal separate (3) The location and a description of storm sewer systems), such operators the activities of the facility of each may be a coapplicant to the same ap- currently operating or closed munic- plication. Permit applications for dis- ipal landfill or other treatment, stor- charges from large and medium munic- age or disposal facility for municipal ipal storm sewers or municipal storm waste; sewers designated under paragraph (4) The location and the permit num- (a)(1)(v) of this section shall include; ber of any known discharge to the mu- (1) Part 1. Part 1 of the application nicipal storm sewer that has been shall consist of; issued a NPDES permit; (i) General information. The appli- (5) The location of major structural cants’ name, address, telephone num- controls for storm water discharge (re- ber of contact person, ownership status tention basins, detention basins, major and status as a State or local govern- infiltration devices, etc.); and ment entity. (6) The identification of publicly (ii) Legal authority. A description of owned parks, recreational areas, and existing legal authority to control dis- other open lands. charges to the municipal separate (iv) Discharge characterization. (A) storm sewer system. When existing Monthly mean rain and snow fall esti- legal authority is not sufficient to mates (or summary of weather bureau meet the criteria provided in paragraph data) and the monthly average number (d)(2)(i) of this section, the description of storm events. shall list additional authorities as will (B) Existing quantitative data de- be necessary to meet the criteria and scribing the volume and quality of dis- shall include a schedule and commit- charges from the municipal storm ment to seek such additional authority sewer, including a description of the that will be needed to meet the cri- outfalls sampled, sampling procedures teria. and analytical methods used. (iii) Source identification. (A) A de- (C) A list of water bodies that receive scription of the historic use of ordi- discharges from the municipal separate nances, guidance or other controls storm sewer system, including down- which limited the discharge of non- stream segments, lakes and estuaries, storm water discharges to any Publicly where pollutants from the system dis- Owned Treatment Works serving the charges may accumulate and cause same area as the municipal separate water degradation and a brief descrip- storm sewer system. tion of known water quality impacts. (B) A USGS 7.5 minute topographic At a minimum, the description of im- map (or equivalent topographic map pacts shall include a description of with a scale between 1:10,000 and whether the water bodies receiving 1:24,000 if cost effective) extending one such discharges have been: mile beyond the service boundaries of (1) Assessed and reported in section the municipal storm sewer system cov- 305(b) reports submitted by the State, ered by the permit application. The fol- the basis for the assessment (evaluated lowing information shall be provided: or monitored), a summary of des- (1) The location of known municipal ignated use support and attainment of storm sewer system outfalls dis- Clean Water Act (CWA) goals (fishable charging to waters of the United and swimmable waters), and causes of States; nonsupport of designated uses; (2) A description of the land use ac- (2) Listed under section 304(l)(1)(A)(i), tivities (e.g. divisions indicating unde- section 304(l)(1)(A)(ii), or section veloped, residential, commercial, agri- 304(l)(1)(B) of the CWA that is not ex- cultural and industrial uses) accom- pected to meet water quality standards panied with estimates of population or water quality goals; densities and projected growth for a (3) Listed in State Nonpoint Source ten year period within the drainage Assessments required by section 319(a) area served by the separate storm of the CWA that, without additional sewer. For each land use type, an esti- action to control nonpoint sources of mate of an average runoff coefficient pollution, cannot reasonably be ex- shall be provided; pected to attain or maintain water

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quality standards due to storm sewers, with a description of the flow rate. construction, highway maintenance Where the field analysis does not in- and runoff from municipal landfills and volve analytical methods approved municipal sludge adding significant under 40 CFR part 136, the applicant pollution (or contributing to a viola- shall provide a description of the meth- tion of water quality standards); od used including the name of the man- (4) Identified and classified according ufacturer of the test method along to eutrophic condition of publicly with the range and accuracy of the owned lakes listed in State reports re- test. Field screening points shall be ei- quired under section 314(a) of the CWA ther major outfalls or other outfall (include the following: A description of points (or any other point of access those publicly owned lakes for which such as manholes) randomly located uses are known to be impaired; a de- throughout the storm sewer system by scription of procedures, processes and placing a grid over a drainage system methods to control the discharge of map and identifying those cells of the pollutants from municipal separate grid which contain a segment of the storm sewers into such lakes; and a de- storm sewer system or major outfall. scription of methods and procedures to The field screening points shall be es- restore the quality of such lakes); tablished using the following guide- (5) Areas of concern of the Great lines and criteria: Lakes identified by the International (1) A grid system consisting of per- Joint Commission; pendicular north-south and east-west (6) Designated estuaries under the lines spaced 1⁄4 mile apart shall be National Estuary Program under sec- overlayed on a map of the municipal tion 320 of the CWA; storm sewer system, creating a series (7) Recognized by the applicant as of cells; highly valued or sensitive waters; (2) All cells that contain a segment of (8) Defined by the State or U.S. Fish the storm sewer system shall be identi- and Wildlife Services’s National Wet- fied; one field screening point shall be lands Inventory as wetlands; and selected in each cell; major outfalls (9) Found to have pollutants in bot- may be used as field screening points; tom sediments, fish tissue or biosurvey (3) Field screening points should be data. located downstream of any sources of (D) Field screening. Results of a field suspected illegal or illicit activity; screening analysis for illicit connec- (4) Field screening points shall be lo- tions and illegal dumping for either se- cated to the degree practicable at the lected field screening points or major farthest manhole or other accessible outfalls covered in the permit applica- location downstream in the system, tion. At a minimum, a screening anal- within each cell; however, safety of ysis shall include a narrative descrip- personnel and accessibility of the loca- tion, for either each field screening tion should be considered in making point or major outfall, of visual obser- this determination; vations made during dry weather peri- (5) Hydrological conditions; total ods. If any flow is observed, two grab drainage area of the site; population samples shall be collected during a 24 density of the site; traffic density; age hour period with a minimum period of of the structures or buildings in the four hours between samples. For all area; history of the area; and land use such samples, a narrative description types; of the color, odor, turbidity, the pres- (6) For medium municipal separate ence of an oil sheen or surface scum as storm sewer systems, no more than 250 well as any other relevant observations cells need to have identified field regarding the potential presence of screening points; in large municipal non-storm water discharges or illegal separate storm sewer systems, no more dumping shall be provided. In addition, than 500 cells need to have identified a narrative description of the results of field screening points; cells established a field analysis using suitable methods by the grid that contain no storm to estimate pH, total chlorine, total sewer segments will be eliminated from copper, total phenol, and detergents (or consideration; if fewer than 250 cells in surfactants) shall be provided along medium municipal sewers are created,

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and fewer than 500 in large systems are clude, but are not limited to: Proce- created by the overlay on the munic- dures to control pollution resulting ipal sewer map, then all those cells from construction activities; floodplain which contain a segment of the sewer management controls; wetland protec- system shall be subject to field screen- tion measures; best management prac- ing (unless access to the separate tices for new subdivisions; and emer- storm sewer system is impossible); and gency spill response programs. The de- (7) Large or medium municipal sepa- scription may address controls estab- rate storm sewer systems which are lished under State law as well as local unable to utilize the procedures de- requirements. scribed in paragraphs (d)(1)(iv)(D) (1) (B) A description of the existing pro- through (6) of this section, because a gram to identify illicit connections to sufficiently detailed map of the sepa- the municipal storm sewer system. The rate storm sewer systems is unavail- description should include inspection able, shall field screen no more than procedures and methods for detecting 500 or 250 major outfalls respectively and preventing illicit discharges, and (or all major outfalls in the system, if describe areas where this program has less); in such circumstances, the appli- been implemented. cant shall establish a grid system con- (vi) Fiscal resources. (A) A description sisting of north-south and east-west of the financial resources currently 1 lines spaced ⁄4 mile apart as an overlay available to the municipality to com- to the boundaries of the municipal plete part 2 of the permit application. storm sewer system, thereby creating a A description of the municipality’s series of cells; the applicant will then budget for existing storm water pro- select major outfalls in as many cells grams, including an overview of the as possible until at least 500 major out- municipality’s financial resources and falls (large municipalities) or 250 major budget, including overall indebtedness outfalls (medium municipalities) are and assets, and sources of funds for selected; a field screening analysis storm water programs. shall be undertaken at these major (2) Part 2. Part 2 of the application outfalls. shall consist of: (E) Characterization plan. Information and a proposed program to meet the re- (i) Adequate legal authority. A dem- quirements of paragraph (d)(2)(iii) of onstration that the applicant can oper- this section. Such description shall in- ate pursuant to legal authority estab- clude: the location of outfalls or field lished by statute, ordinance or series of screening points appropriate for rep- contracts which authorizes or enables resentative data collection under para- the applicant at a minimum to: graph (d)(2)(iii)(A) of this section, a de- (A) Control through ordinance, per- scription of why the outfall or field mit, contract, order or similar means, screening point is representative, the the contribution of pollutants to the seasons during which sampling is in- municipal storm sewer by storm water tended, a description of the sampling discharges associated with industrial equipment. The proposed location of activity and the quality of storm water outfalls or field screening points for discharged from sites of industrial ac- such sampling should reflect water tivity; quality concerns (see paragraph (B) Prohibit through ordinance, order (d)(1)(iv)(C) of this section) to the ex- or similar means, illicit discharges to tent practicable. the municipal separate storm sewer; (v) Management programs. (A) A de- (C) Control through ordinance, order scription of the existing management or similar means the discharge to a programs to control pollutants from municipal separate storm sewer of the municipal separate storm sewer spills, dumping or disposal of materials system. The description shall provide other than storm water; information on existing structural and (D) Control through interagency source controls, including operation agreements among coapplicants the and maintenance measures for struc- contribution of pollutants from one tural controls, that are currently being portion of the municipal system to an- implemented. Such controls may in- other portion of the municipal system;

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(E) Require compliance with condi- quirements at § 122.21(g)(7) (the Direc- tions in ordinances, permits, contracts tor may allow exemptions to sampling or orders; and three storm events when climatic con- (F) Carry out all inspection, surveil- ditions create good cause for such ex- lance and monitoring procedures nec- emptions); essary to determine compliance and (2) A narrative description shall be noncompliance with permit conditions provided of the date and duration of including the prohibition on illicit dis- the storm event(s) sampled, rainfall es- charges to the municipal separate timates of the storm event which gen- storm sewer. erated the sampled discharge and the (ii) Source identification. The location duration between the storm event sam- of any major outfall that discharges to pled and the end of the previous meas- waters of the United States that was urable (greater than 0.1 inch rainfall) not reported under paragraph storm event; (d)(1)(iii)(B)(1) of this section. Provide (3) For samples collected and de- an inventory, organized by watershed scribed under paragraphs (d)(2)(iii) of the name and address, and a descrip- (A)(1) and (A)(2) of this section, quan- tion (such as SIC codes) which best re- titative data shall be provided for: the flects the principal products or services organic pollutants listed in Table II; provided by each facility which may the pollutants listed in Table III (toxic discharge, to the municipal separate metals, cyanide, and total phenols) of storm sewer, storm water associated appendix D of 40 CFR part 122, and for with industrial activity; the following pollutants: (iii) Characterization data. When Total suspended solids (TSS) ‘‘quantitative data’’ for a pollutant are Total dissolved solids (TDS) required under paragraph COD (d)(2)(iii)(A)(3) of this section, the ap- BOD5 plicant must collect a sample of efflu- Oil and grease Fecal coliform ent in accordance with 40 CFR Fecal streptococcus 122.21(g)(7) and analyze it for the pol- pH lutant in accordance with analytical Total Kjeldahl nitrogen methods approved under part 136 of Nitrate plus nitrite this chapter. When no analytical meth- Dissolved phosphorus od is approved the applicant may use Total ammonia plus organic nitrogen any suitable method but must provide Total phosphorus a description of the method. The appli- (4) Additional limited quantitative cant must provide information charac- data required by the Director for deter- terizing the quality and quantity of mining permit conditions (the Director discharges covered in the permit appli- may require that quantitative data cation, including: shall be provided for additional param- (A) Quantitative data from represent- eters, and may establish sampling con- ative outfalls designated by the Direc- ditions such as the location, season of tor (based on information received in sample collection, form of precipita- part 1 of the application, the Director tion (snow melt, rainfall) and other pa- shall designate between five and ten rameters necessary to insure represent- outfalls or field screening points as ativeness); representative of the commercial, resi- (B) Estimates of the annual pollutant dential and industrial land use activi- load of the cumulative discharges to ties of the drainage area contributing waters of the United States from all to the system or, where there are less identified municipal outfalls and the than five outfalls covered in the appli- event mean concentration of the cumu- cation, the Director shall designate all lative discharges to waters of the outfalls) developed as follows: United States from all identified mu- (1) For each outfall or field screening nicipal outfalls during a storm event point designated under this subpara- (as described under § 122.21(c)(7)) for graph, samples shall be collected of BOD5, COD, TSS, dissolved solids, total storm water discharges from three nitrogen, total ammonia plus organic storm events occurring at least one nitrogen, total phosphorus, dissolved month apart in accordance with the re- phosphorus, cadmium, copper, lead,

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and zinc. Estimates shall be accom- sewer system that are to be imple- panied by a description of the proce- mented during the life of the permit, dures for estimating constituent loads accompanied with an estimate of the and concentrations, including any expected reduction of pollutant loads modelling, data analysis, and calcula- and a proposed schedule for imple- tion methods; menting such controls. At a minimum, (C) A proposed schedule to provide es- the description shall include: timates for each major outfall identi- (1) A description of maintenance ac- fied in either paragraph (d)(2)(ii) or tivities and a maintenance schedule for (d)(1)(iii)(B)(1) of this section of the structural controls to reduce pollut- seasonal pollutant load and of the ants (including floatables) in dis- event mean concentration of a rep- charges from municipal separate storm resentative storm for any constituent sewers; detected in any sample required under (2) A description of planning proce- paragraph (d)(2)(iii)(A) of this section; dures including a comprehensive mas- and ter plan to develop, implement and en- (D) A proposed monitoring program force controls to reduce the discharge for representative data collection for of pollutants from municipal separate the term of the permit that describes storm sewers which receive discharges the location of outfalls or field screen- from areas of new development and sig- ing points to be sampled (or the loca- nificant redevelopment. Such plan tion of instream stations), why the lo- shall address controls to reduce pollut- cation is representative, the frequency ants in discharges from municipal sep- of sampling, parameters to be sampled, arate storm sewers after construction and a description of sampling equip- is completed. (Controls to reduce pol- ment. lutants in discharges from municipal (iv) Proposed management program. A separate storm sewers containing con- proposed management program covers struction site runoff are addressed in the duration of the permit. It shall in- paragraph (d)(2)(iv)(D) of this section; clude a comprehensive planning proc- (3) A description of practices for op- ess which involves public participation erating and maintaining public streets, and where necessary intergovern- mental coordination, to reduce the dis- roads and highways and procedures for charge of pollutants to the maximum reducing the impact on receiving extent practicable using management waters of discharges from municipal practices, control techniques and sys- storm sewer systems, including pollut- tem, design and engineering methods, ants discharged as a result of deicing and such other provisions which are ap- activities; propriate. The program shall also in- (4) A description of procedures to as- clude a description of staff and equip- sure that flood management projects ment available to implement the pro- assess the impacts on the water quality gram. Separate proposed programs may of receiving water bodies and that ex- be submitted by each coapplicant. Pro- isting structural flood control devices posed programs may impose controls have been evaluated to determine if on a systemwide basis, a watershed retrofitting the device to provide addi- basis, a jurisdiction basis, or on indi- tional pollutant removal from storm vidual outfalls. Proposed programs will water is feasible; be considered by the Director when de- (5) A description of a program to veloping permit conditions to reduce monitor pollutants in runoff from oper- pollutants in discharges to the max- ating or closed municipal landfills or imum extent practicable. Proposed other treatment, storage or disposal fa- management programs shall describe cilities for municipal waste, which priorities for implementing controls. shall identify priorities and procedures Such programs shall be based on: for inspections and establishing and (A) A description of structural and implementing control measures for source control measures to reduce pol- such discharges (this program can be lutants from runoff from commercial coordinated with the program devel- and residential areas that are dis- oped under paragraph (d)(2)(iv)(C) of charged from the municipal storm this section); and

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(6) A description of a program to re- (3) A description of procedures to be duce to the maximum extent prac- followed to investigate portions of the ticable, pollutants in discharges from separate storm sewer system that, municipal separate storm sewers asso- based on the results of the field screen, ciated with the application of pes- or other appropriate information, indi- ticides, herbicides and fertilizer which cate a reasonable potential of con- will include, as appropriate, controls taining illicit discharges or other such as educational activities, permits, sources of non-storm water (such pro- certifications and other measures for cedures may include: sampling proce- commercial applicators and distribu- dures for constituents such as fecal tors, and controls for application in coliform, fecal streptococcus, public right-of-ways and at municipal surfactants (MBAS), residual chlorine, facilities. fluorides and potassium; testing with (B) A description of a program, in- fluorometric dyes; or conducting in cluding a schedule, to detect and re- storm sewer inspections where safety move (or require the discharger to the and other considerations allow. Such municipal separate storm sewer to ob- description shall include the location tain a separate NPDES permit for) il- of storm sewers that have been identi- licit discharges and improper disposal fied for such evaluation); into the storm sewer. The proposed (4) A description of procedures to pre- program shall include: vent, contain, and respond to spills (1) A description of a program, in- that may discharge into the municipal cluding inspections, to implement and separate storm sewer; enforce an ordinance, orders or similar (5) A description of a program to pro- means to prevent illicit discharges to mote, publicize, and facilitate public the municipal separate storm sewer reporting of the presence of illicit dis- system; this program description shall charges or water quality impacts asso- address all types of illicit discharges, ciated with discharges from municipal however the following category of non- separate storm sewers; storm water discharges or flows shall (6) A description of educational ac- be addressed where such discharges are tivities, public information activities, identified by the municipality as and other appropriate activities to fa- sources of pollutants to waters of the cilitate the proper management and United States: water line flushing, disposal of used oil and toxic materials; landscape irrigation, diverted stream and flows, rising ground waters, (7) A description of controls to limit uncontaminated ground water infiltra- infiltration of seepage from municipal tion (as defined at 40 CFR 35.2005(20)) to sanitary sewers to municipal separate separate storm sewers, storm sewer systems where necessary; uncontaminated pumped ground water, (C) A description of a program to discharges from potable water sources, monitor and control pollutants in foundation drains, air conditioning storm water discharges to municipal condensation, irrigation water, springs, systems from municipal landfills, haz- water from crawl space pumps, footing ardous waste treatment, disposal and drains, lawn watering, individual resi- recovery facilities, industrial facilities dential car washing, flows from ripar- that are subject to section 313 of title ian habitats and wetlands, III of the Superfund Amendments and dechlorinated swimming pool dis- Reauthorization Act of 1986 (SARA), charges, and street wash water (pro- and industrial facilities that the mu- gram descriptions shall address dis- nicipal permit applicant determines charges or flows from fire fighting only are contributing a substantial pollut- where such discharges or flows are ant loading to the municipal storm identified as significant sources of pol- sewer system. The program shall: lutants to waters of the United States); (1) Identify priorities and procedures (2) A description of procedures to for inspections and establishing and conduct on-going field screening activi- implementing control measures for ties during the life of the permit, in- such discharges; cluding areas or locations that will be (2) Describe a monitoring program evaluated by such field screens; for storm water discharges associated

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with the industrial facilities identified penditures, including legal restrictions in paragraph (d)(2)(iv)(C) of this sec- on the use of such funds. tion, to be implemented during the (vii) Where more than one legal enti- term of the permit, including the sub- ty submits an application, the applica- mission of quantitative data on the fol- tion shall contain a description of the lowing constituents: any pollutants roles and responsibilities of each legal limited in effluent guidelines subcat- entity and procedures to ensure effec- egories, where applicable; any pollut- tive coordination. ant listed in an existing NPDES permit (viii) Where requirements under for a facility; oil and grease, COD, pH, paragraph (d)(1)(iv)(E), (d)(2)(ii), BOD5, TSS, total phosphorus, total (d)(2)(iii)(B) and (d)(2)(iv) of this sec- Kjeldahl nitrogen, nitrate plus nitrite tion are not practicable or are not ap- nitrogen, and any information on dis- plicable, the Director may exclude any charges required under § 122.21(g)(7) (vi) operator of a discharge from a munic- and (vii). ipal separate storm sewer which is des- (D) A description of a program to im- ignated under paragraph (a)(1)(v), plement and maintain structural and (b)(4)(ii) or (b)(7)(ii) of this section non-structural best management prac- from such requirements. The Director tices to reduce pollutants in storm shall not exclude the operator of a dis- water runoff from construction sites to charge from a municipal separate the municipal storm sewer system, storm sewer identified in appendix F, which shall include: G, H or I of part 122, from any of the (1) A description of procedures for permit application requirements under site planning which incorporate consid- this paragraph except where authorized eration of potential water quality im- under this section. pacts; (e) Application deadlines. Any oper- (2) A description of requirements for ator of a point source required to ob- nonstructural and structural best man- tain a permit under this section that agement practices; does not have an effective NPDES per- (3) A description of procedures for mit authorizing discharges from its identifying priorities for inspecting storm water outfalls shall submit an sites and enforcing control measures which consider the nature of the con- application in accordance with the fol- struction activity, topography, and the lowing deadlines: characteristics of soils and receiving (1) Storm water discharges associated water quality; and with industrial activity. (i) Except as (4) A description of appropriate edu- provided in paragraph (e)(1)(ii) of this cational and training measures for con- section, for any storm water discharge struction site operators. associated with industrial activity (v) Assessment of controls. Estimated identified in paragraphs (b)(14)(i) reductions in loadings of pollutants through (xi) of this section, that is not from discharges of municipal storm part of a group application as described sewer constituents from municipal in paragraph (c)(2) of this section or storm sewer systems expected as the that is not authorized by a storm water result of the municipal storm water general permit, a permit application quality management program. The as- made pursuant to paragraph (c) of this sessment shall also identify known im- section must be submitted to the Di- pacts of storm water controls on rector by October 1, 1992; ground water. (ii) For any storm water discharge (vi) Fiscal analysis. For each fiscal associated with industrial activity year to be covered by the permit, a fis- from a facility that is owned or oper- cal analysis of the necessary capital ated by a municipality with a popu- and operation and maintenance ex- lation of less than 100,000 that is not penditures necessary to accomplish the authorized by a general or individual activities of the programs under para- permit, other than an airport, power- graphs (d)(2) (iii) and (iv) of this sec- plant, or uncontrolled sanitary landfill, tion. Such analysis shall include a de- the permit application must be sub- scription of the source of funds that mitted to the Director by March 10, are proposed to meet the necessary ex- 2003.

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(2) For any group application sub- the date of receipt of the notice of re- mitted in accordance with paragraph jection or October 1, 1992, whichever is (c)(2) of this section: later. (i) Part 1. (A) Except as provided in (v) A facility listed under paragraph paragraph (e)(2)(i)(B) of this section, (b)(14) (i)–(xi) of this section may add part 1 of the application shall be sub- on to a group application submitted in mitted to the Director, Office of Waste- accordance with paragraph (e)(2)(i) of water Enforcement and Compliance by this section at the discretion of the Of- September 30, 1991; fice of Water Enforcement and Per- (B) Any municipality with a popu- mits, and only upon a showing of good lation of less than 250,000 shall not be cause by the facility and the group ap- required to submit a part 1 application plicant; the request for the addition of before May 18, 1992. the facility shall be made no later than (C) For any storm water discharge February 18, 1992; the addition of the associated with industrial activity facility shall not cause the percentage from a facility that is owned or oper- of the facilities that are required to ated by a municipality with a popu- submit quantitative data to be less lation of less than 100,000 other than an than 10%, unless there are over 100 fa- airport, powerplant, or uncontrolled cilities in the group that are submit- sanitary landfill, permit applications ting quantitative data; approval to be- requirements are reserved. come part of group application must be (ii) Based on information in the part obtained from the group or the trade 1 application, the Director will approve association representing the individual or deny the members in the group ap- facilities. plication within 60 days after receiving (3) For any discharge from a large part 1 of the group application. municipal separate storm sewer sys- (iii) Part 2. (A) Except as provided in tem; paragraph (e)(2)(iii)(B) of this section, (i) Part 1 of the application shall be part 2 of the application shall be submitted to the Director by November submittted to the Director, Office of 18, 1991; Wastewater Enforcement and Compli- (ii) Based on information received in ance by October 1, 1992; the part 1 application the Director will (B) Any municipality with a popu- approve or deny a sampling plan under lation of less than 250,000 shall not be paragraph (d)(1)(iv)(E) of this section required to submit a part 1 application within 90 days after receiving the part before May 17, 1993. 1 application; (C) For any storm water discharge (iii) Part 2 of the application shall be associated with industrial activity submitted to the Director by November from a facility that is owned or oper- 16, 1992. ated by a municipality with a popu- (4) For any discharge from a medium lation of less than 100,000 other than an municipal separate storm sewer sys- airport, powerplant, or uncontrolled tem; sanitary landfill, permit applications (i) Part 1 of the application shall be requirements are reserved. submitted to the Director by May 18, (iv) Rejected facilities. (A) Except as 1992. provided in paragraph (e)(2)(iv)(B) of (ii) Based on information received in this section, facilities that are rejected the part 1 application the Director will as members of the group shall submit approve or deny a sampling plan under an individual application (or obtain paragraph (d)(1)(iv)(E) of this section coverage under an applicable general within 90 days after receiving the part permit) no later than 12 months after 1 application. the date of receipt of the notice of re- (iii) Part 2 of the application shall be jection or October 1, 1992, whichever submitted to the Director by May 17, comes first. 1993. (B) Facilities that are owned or oper- (5) A permit application shall be sub- ated by a municipality and that are re- mitted to the Director within 180 days jected as members of part 1 group ap- of notice, unless permission for a later plication shall submit an individual ap- date is granted by the Director (see plication no later than 180 days after § 124.52(c) of this chapter), for:

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(i) A storm water discharge that the vember 16, 1992, one year after receipt Director, or in States with approved of a complete permit application; NPDES programs, either the Director (iii) The Director shall issue or deny or the EPA Regional Administrator, permits for medium municipal separate determines that the discharge contrib- storm sewer systems no later than May utes to a violation of a water quality 17, 1994, or, for new sources or existing standard or is a significant contributor sources which fail to submit a com- of pollutants to waters of the United plete permit application by May 17, States (see paragraphs (a)(1)(v) and 1993, one year after receipt of a com- (b)(15)(ii) of this section); plete permit application. (ii) A storm water discharge subject (8) For any storm water discharge as- to paragraph (c)(1)(v) of this section. sociated with small construction ac- (6) Facilities with existing NPDES tivities identified in paragraph permits for storm water discharges as- (b)(15)(i) of this section, see sociated with industrial activity shall § 122.21(c)(1). Discharges from these maintain existing permits. Facilities sources require permit authorization with permits for storm water dis- by March 10, 2003, unless designated for charges associated with industrial ac- coverage before then. tivity which expire on or after May 18, (9) For any discharge from a regu- 1992 shall submit a new application in lated small MS4, the permit applica- accordance with the requirements of 40 tion made under § 122.33 must be sub- CFR 122.21 and 40 CFR 122.26(c) (Form mitted to the Director by: 1, Form 2F, and other applicable (i) March 10, 2003 if designated under Forms) 180 days before the expiration § 122.32(a)(1) unless your MS4 serves a of such permits. jurisdiction with a population under 10,000 and the NPDES permitting au- (7) The Director shall issue or deny thority has established a phasing permits for discharges composed en- schedule under § 123.35(d)(3) (see tirely of storm water under this sec- § 122.33(c)(1)); or tion in accordance with the following (ii) Within 180 days of notice, unless schedule: the NPDES permitting authority (i)(A) Except as provided in para- grants a later date, if designated under graph (e)(7)(i)(B) of this section, the Di- § 122.32(a)(2) (see § 122.33(c)(2)). rector shall issue or deny permits for (f) Petitions. (1) Any operator of a mu- storm water discharges associated with nicipal separate storm sewer system industrial activity no later than Octo- may petition the Director to require a ber 1, 1993, or, for new sources or exist- separate NPDES permit (or a permit ing sources which fail to submit a com- issued under an approved NPDES State plete permit application by October 1, program) for any discharge into the 1992, one year after receipt of a com- municipal separate storm sewer sys- plete permit application; tem. (B) For any municipality with a pop- (2) Any person may petition the Di- ulation of less than 250,000 which sub- rector to require a NPDES permit for a mits a timely Part I group application discharge which is composed entirely under paragraph (e)(2)(i)(B) of this sec- of storm water which contributes to a tion, the Director shall issue or deny violation of a water quality standard permits for storm water discharges as- or is a significant contributor of pol- sociated with industrial activity no lutants to waters of the United States. later than May 17, 1994, or, for any such (3) The owner or operator of a munic- municipality which fails to submit a ipal separate storm sewer system may complete Part II group permit applica- petition the Director to reduce the tion by May 17, 1993, one year after re- Census estimates of the population ceipt of a complete permit application; served by such separate system to ac- (ii) The Director shall issue or deny count for storm water discharged to permits for large municipal separate combined sewers as defined by 40 CFR storm sewer systems no later than No- 35.2005(b)(11) that is treated in a pub- vember 16, 1993, or, for new sources or licly owned treatment works. In mu- existing sources which fail to submit a nicipalities in which combined sewers complete permit application by No- are operated, the Census estimates of

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population may be reduced propor- (ii) Complete and sign (according to tional to the fraction, based on esti- § 122.22) a certification that there are mated lengths, of the length of com- no discharges of storm water contami- bined sewers over the sum of the length nated by exposure to industrial mate- of combined sewers and municipal sep- rials and activities from the entire fa- arate storm sewers where an applicant cility, except as provided in paragraph has submitted the NPDES permit num- (g)(2) of this section; ber associated with each discharge (iii) Submit the signed certification point and a map indicating areas to the NPDES permitting authority served by combined sewers and the lo- once every five years; cation of any combined sewer overflow (iv) Allow the Director to inspect the discharge point. facility to determine compliance with (4) Any person may petition the Di- the ‘‘no exposure’’ conditions; rector for the designation of a large, (v) Allow the Director to make any medium, or small municipal separate ‘‘no exposure’’ inspection reports avail- storm sewer system as defined by para- able to the public upon request; and graph (b)(4)(iv), (b)(7)(iv), or (b)(16) of (vi) For facilities that discharge this section. through an MS4, upon request, submit (5) The Director shall make a final a copy of the certification of ‘‘no expo- determination on any petition received sure’’ to the MS4 operator, as well as under this section within 90 days after allow inspection and public reporting receiving the petition with the excep- by the MS4 operator. tion of petitions to designate a small (2) Industrial materials and activities MS4 in which case the Director shall not requiring storm resistant shelter. To make a final determination on the pe- qualify for this exclusion, storm resist- tition within 180 days after its receipt. ant shelter is not required for: (g) Conditional exclusion for ‘‘no expo- (i) Drums, barrels, tanks, and similar sure’’ of industrial activities and mate- containers that are tightly sealed, pro- rials to storm water. Discharges com- vided those containers are not deterio- posed entirely of storm water are not rated and do not leak (‘‘Sealed’’ means storm water discharges associated with banded or otherwise secured and with- industrial activity if there is ‘‘no expo- out operational taps or valves); sure’’ of industrial materials and ac- (ii) Adequately maintained vehicles tivities to rain, snow, snowmelt and/or used in material handling; and runoff, and the discharger satisfies the (iii) Final products, other than prod- conditions in paragraphs (g)(1) through ucts that would be mobilized in storm (g)(4) of this section. ‘‘No exposure’’ water discharge (e.g., rock salt). means that all industrial materials and (3) Limitations. (i) Storm water dis- activities are protected by a storm re- charges from construction activities sistant shelter to prevent exposure to identified in paragraphs (b)(14)(x) and rain, snow, snowmelt, and/or runoff. In- (b)(15) are not eligible for this condi- dustrial materials or activities include, tional exclusion. but are not limited to, material han- (ii) This conditional exclusion from dling equipment or activities, indus- the requirement for an NPDES permit trial machinery, raw materials, inter- is available on a facility-wide basis mediate products, by-products, final only, not for individual outfalls. If a fa- products, or waste products. Material cility has some discharges of storm handling activities include the storage, water that would otherwise be ‘‘no ex- loading and unloading, transportation, posure’’ discharges, individual permit or conveyance of any raw material, in- requirements should be adjusted ac- termediate product, final product or cordingly. waste product. (iii) If circumstances change and in- (1) Qualification. To qualify for this dustrial materials or activities become exclusion, the operator of the discharge exposed to rain, snow, snow melt, and/ must: or runoff, the conditions for this exclu- (i) Provide a storm resistant shelter sion no longer apply. In such cases, the to protect industrial materials and ac- discharge becomes subject to enforce- tivities from exposure to rain, snow, ment for un-permitted discharge. Any snow melt, and runoff; conditionally exempt discharger who

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anticipates changes in circumstances (I) Waste material (except waste in should apply for and obtain permit au- covered, non-leaking containers, e.g., thorization prior to the change of cir- dumpsters); cumstances. (J) Application or disposal of process (iv) Notwithstanding the provisions wastewater (unless otherwise per- of this paragraph, the NPDES permit- mitted); and ting authority retains the authority to (K) Particulate matter or visible de- require permit authorization (and deny posits of residuals from roof stacks/ this exclusion) upon making a deter- vents not otherwise regulated, i.e., mination that the discharge causes, under an air quality control permit, has a reasonable potential to cause, or and evident in the storm water out- contributes to an instream excursion flow; above an applicable water quality (iv) All ‘‘no exposure’’ certifications standard, including designated uses. must include the following certifi- cation statement, and be signed in ac- (4) Certification. The no exposure cer- cordance with the signatory require- tification must require the submission ments of § 122.22: ‘‘I certify under pen- of the following information, at a min- alty of law that I have read and under- imum, to aid the NPDES permitting stand the eligibility requirements for authority in determining if the facility claiming a condition of ‘‘no exposure’’ qualifies for the no exposure exclusion: and obtaining an exclusion from (i) The legal name, address and phone NPDES storm water permitting; and number of the discharger (see that there are no discharges of storm § 122.21(b)); water contaminated by exposure to in- (ii) The facility name and address, dustrial activities or materials from the county name and the latitude and the industrial facility identified in this longitude where the facility is located; document (except as allowed under (iii) The certification must indicate paragraph (g)(2)) of this section. I un- that none of the following materials or derstand that I am obligated to submit activities are, or will be in the foresee- a no exposure certification form once able future, exposed to precipitation: every five years to the NPDES permit- (A) Using, storing or cleaning indus- ting authority and, if requested, to the trial machinery or equipment, and operator of the local MS4 into which areas where residuals from using, stor- this facility discharges (where applica- ing or cleaning industrial machinery or ble). I understand that I must allow the equipment remain and are exposed to NPDES permitting authority, or MS4 storm water; operator where the discharge is into (B) Materials or residuals on the the local MS4, to perform inspections ground or in storm water inlets from to confirm the condition of no exposure spills/leaks; and to make such inspection reports (C) Materials or products from past publicly available upon request. I un- industrial activity; derstand that I must obtain coverage under an NPDES permit prior to any (D) Material handling equipment (ex- point source discharge of storm water cept adequately maintained vehicles); from the facility. I certify under pen- (E) Materials or products during alty of law that this document and all loading/unloading or transporting ac- attachments were prepared under my tivities; direction or supervision in accordance (F) Materials or products stored out- with a system designed to assure that doors (except final products intended qualified personnel properly gathered for outside use, e.g., new cars, where and evaluated the information sub- exposure to storm water does not re- mitted. Based upon my inquiry of the sult in the discharge of pollutants); person or persons who manage the sys- (G) Materials contained in open, de- tem, or those persons directly involved teriorated or leaking storage drums, in gathering the information, the infor- barrels, tanks, and similar containers; mation submitted is to the best of my (H) Materials or products handled/ knowledge and belief true, accurate stored on roads or railways owned or and complete. I am aware there are sig- maintained by the discharger; nificant penalties for submitting false

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information, including the possibility § 122.28 General permits (applicable to of fine and imprisonment for knowing State NPDES programs, see violations.’’ § 123.25). [55 FR 48063, Nov. 16, 1990] (a) Coverage. The Director may issue a general permit in accordance with EDITORIAL NOTE: For FEDERAL REGISTER ci- the following: tations affecting § 122.26, see the List of CFR (1) Area. The general permit shall be Sections Affected, which appears in the Finding Aids section of the printed volume written to cover one or more categories and at www.fdsys.gov. or subcategories of discharges or sludge use or disposal practices or facilities § 122.27 Silvicultural activities (appli- described in the permit under para- cable to State NPDES programs, see graph (a)(2)(ii) of this section, except § 123.25). those covered by individual permits, (a) Permit requirement. Silvicultural within a geographic area. The area point sources, as defined in this sec- should correspond to existing geo- tion, as point sources subject to the graphic or political boundaries such as: NPDES permit program. (i) Designated planning areas under (b) Definitions. (1) Silvicultural point sections 208 and 303 of CWA; source means any discernible, confined (ii) Sewer districts or sewer authori- and discrete conveyance related to ties; rock crushing, gravel washing, log (iii) City, county, or State political sorting, or log storage facilities which boundaries; are operated in connection with sil- (iv) State highway systems; vicultural activities and from which (v) Standard metropolitan statistical pollutants are discharged into waters areas as defined by the Office of Man- of the United States. The term does agement and Budget; not include non-point source silvicul- (vi) Urbanized areas as designated by tural activities such as nursery oper- the Bureau of the Census according to ations, site preparation, reforestation criteria in 30 FR 15202 (May 1, 1974); or and subsequent cultural treatment, (vii) Any other appropriate division thinning, prescribed burning, pest and or combination of boundaries. fire control, harvesting operations, sur- (2) Sources. The general permit may face drainage, or road construction and be written to regulate one or more cat- maintenance from which there is nat- egories or subcategories of discharges ural runoff. However, some of these ac- or sludge use or disposal practices or tivities (such as stream crossing for facilities, within the area described in roads) may involve point source dis- paragraph (a)(1) of this section, where charges of dredged or fill material the sources within a covered sub- which may require a CWA section 404 category of discharges are either: permit (See 33 CFR 209.120 and part (i) Storm water point sources; or (ii) 233). One or more categories or subcat- (2) Rock crushing and gravel washing egories of point sources other than facilities means facilities which process storm water point sources, or one or crushed and broken stone, gravel, and more categories or subcategories of riprap (See 40 CFR part 436, subpart B, ‘‘treatment works treating domestic including the effluent limitations sewage’’, if the sources or ‘‘treatment guidelines). works treating domestic sewage’’ with- (3) Log sorting and log storage facilities in each category or subcategory all: means facilities whose discharges re- (A) Involve the same or substantially sult from the holding of unprocessed similar types of operations; wood, for example, logs or roundwood (B) Discharge the same types of with bark or after removal of bark held wastes or engage in the same types of in self-contained bodies of water (mill sludge use or disposal practices; ponds or log ponds) or stored on land (C) Require the same effluent limita- where water is applied intentionally on tions, operating conditions, or stand- the logs (wet decking). (See 40 CFR ards for sewage sludge use or disposal; part 429, subpart I, including the efflu- (D) Require the same or similar mon- ent limitations guidelines). itoring; and (E) In the opinion of the

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U.S. ENVIRONMENTAL PROTECTION AGENCY

Region 9

Guidance on

Implementing the Antidegradation Provisions

of 40 CFR 131.12

RICHARD A. CODD Acting Director Water Management Division PURPOSE

This document provides general program guidance for the States of Region 9 on the development of procedures for implementing State antidegradation policies. The focus of this guidance is on 40 CFR 131.12 of the water quality standards regulation (promulgated in 48 FR 51407, dated November 8, 1983) which sets out requirements to be met before any action is taken that would lower the quality of the Nation's waters. BACKGROUND

Section 101(a) of the Clean Water Act defines the national goal of restoring and maintaining the chemical, physical and biological integrity of the Nation's waters. Section 303(a)(4) of the Clean Water Act explicitly refers to satisfaction of the antidegradation requirements of 40 CFR 131.12 prior to taking various actions which would lower water quality. 40 CFR 131.12 requires that antidegradation provisions at least as stringent as those specified in that regulation be adopted by States as part of their water quality standards.

This guidance identifies the tasks to be performed by States to implement Section 131.12 of the water quality standards regulation. Those tasks that need the development of decision criteria by the States are identified. Such criteria are necessary to define those actions which require detailed economic or water quality impact analyses. The Agency expects States to develop and document these criteria in their antidegradation implementation procedures, for review and approval by EPA regional offices. The Agency's objective is to achieve the goals of the Act through an integrated approach to eliminating water pollution which includes the consistent application of State antidegradation policies. Figure 1 lays out the decision making process of an antidegradation analysis.

Many of the procedures identified herein are already performed by States as part of their regulatory programs. Consequently, this document primarily serves to delineate, in a consistent manner, the criteria EPA Region 9 will be using to evaluate both State and EPA decisions, for compliance with 40 CFR 131.12.

Page 1 TIER III WATERS - Outstanding National Resource Waters

40 CFR 131.12(a)(3) prohibits any action which would lower water quality in waters designated as Outstanding National Resource Waters (ONRWS). Examples of such waters include, but are not limited to, waters of National and State parks and wildlife refuges, and waters of exceptional recreational or ecological significance.

TIER I WATERS

40 CFR l31.12(a)(l) prohibits any action which would lower water quality below that necessary to maintain and protect existing uses. In cases where water quality is just adequate to support the propagation of fish, shell fish and wildlife and recreation in and on the water, such water quality must be maintained and protected. In cases where water quality is lower than necessary to support these uses, the requirements in Section 303(d) of the Act, 40 CFR 131.10 and other pertinent regulations must be satisfied. Guidance concerning actions affecting these waters has been published elsewhere and will not be repeated here.

TIER II WATERS - High Quality Waters

Applicability

40 CFR 131.12 establishes certain minimum requirements for States to adopt regulating actions which would lower water quality in high quality waters. These waters are defined as those in which water quality exceeds that necessary to support propagation of fish, shellfish and wildlife and recreation in and on the water. Any action which would result in, or which would permit, a lowering of water quality must be addressed in State implementation procedures. Actions covered by antidegradation provisions include, but are not limited to the following:

Permit Actions

1. Issuance/Re-issuance/Modification of NPDES permits

2. Issuance of variances (e.g. 301(h), 301(m), etc.)

Page 2 3. Issuance of permits for urban runoff

4. Issuance of Section 404 permits

5. Adoption of or alteration of mixing zones

6. Relocation of discharge

7. Commencement of discharge from a new source

8. Increases in the discharge of pollutants from point sources due to:

a. Industrial production increases

b. Municipal growth

C. New sources

d. Etc. Standards/Load Allocation Actions

1. Water quality standards revisions

2. Revision of wasteload allocations

3. Reallocation of abandoned loads

4. Section 401 certifications (for example: concerning FERC licenses, Corps' actions, etc.)

5. Section 208 or Section 303(e) approvals 6. WQM plan approvals

"Non-point Source" Actions

1. Changes in BMPs

2. Resource management plan approvals

3. Land Management (e.g. Forest) plan adoptions, certifica- tions or approvals

Page 3 4. Changes in regulated agricultural activities

5. Changes in regulated silvicultural activities 6. Changes in regulated mining activities

7. Construction and operation of roads, dams, etc. Other Actions

1. RCRA/CERCLA actions

2. Construction grant activities

3. Other "major Federal actions" (pursuant to NEPA and the Endangered Species Act)

4. Water quantity/water rights actions which affect water quality

5. Federal actions regulated by Section 313 of the Clean Water Act

Prior to proceeding with a detailed analysis of these or similar actions, the affected water body should be assessed to determine whether or not it falls into either Tier I or Tier III. If so, actions which would lower water quality in such waters are prohibited. Otherwise, the water body should be assessed to determine the adequacy of the beneficial uses and water quality criteria designated for that water body. Adequate water quality standards must be adopted and approved for an affected water body, pursuant to 40 CFR 131 prior to allowing any action to proceed which would lower water quality in that water body.

The first step in any antidegradation analysis is to determine whether or not the proposed action will lower water quality (see Figure 1). If the action will not lower water quality, no further analysis is needed and EPA considers 40 CFR 131.12 to be satisfied. If the action could or will lower water quality, and the affected water is not a Tier I or Tier III water, then the steps to be followed to determine whether or not 40 CFR 131.12 is satisfied are described in the following sections of this guidance.

Page 4 Both point and non-point sources of pollution are subject to antidegradation requirements. While point sources are generally well regulated, procedures for controlling non-point source pollution have not been as extensively defined. Cost-effective and reasonable best management practices for non-point source controls must be designed to meet water quality standards. EPA policy, first issued as SAM-32 on November 14, 1978, states that where applicable water quality standards are not met, revised or additional best management practices (BMPs) should be applied in an iterative process to improve water quality to the point that standards are attained, and that designated uses are maintained and protected. In Region 9, States generally have broad authority to regulate non-point sources. As part of their implementation methodologies, States must adopt procedures which adequately assure that non-point sources of water pollution will comply with the antidegradation requirements of 40 CFR 131.12.

Implementation Procedures

Four basic elements should be included in State implementation procedures to ensure that actions affecting water quality are consistent with the provisions of 40 CFR 131.12. They are:

o Task A - Identify Actions that Require Detailed Water Quality and Economic Impact Analyses

o Task B - Determine that Lower Water Quality Will Fully Protect Designated Uses

o Task C - Determine That Lower Water Quality is Necessary to Accommodate Important Economic or Social Development in the Area in which the Waters are Located

o Task D - Complete Intergovernmental Coordination and Public Participation

Task A - Identify Actions that Require Detailed Water Quality and Economic Impact Analyses This task established the types of analyses required for all actions that lower water quality in Tier II waters and decision criteria that define the degree of water quality and economic analysis required.

Page 5 State procedures should include three parts. First, the State should develop procedures to document the degree to which water quality exceeds that necessary to protect the uses. Ambient monitoring data can be used to provide this documentation. States must adopt procedures to assure that, where little or no data exists, adequate information will be available to determine the existing quality of the water body or bodies, which could be adversely affected by the proposed action. Such procedures should include both an assessment of existing water quality and a determination of which water quality parameters and beneficial uses are likely to be affected. These assessments and determin- ations could be performed either by the State or the party proposing the action in question.

Second, the State should develop procedures that quantify the extent to which water quality will be lowered as a result of the proposed action. Simple mass balance calculations or more detailed mathematic modelling, such as that contained in waste- load allocations, can provide this information. Third, the State should develop decision criteria to define the degree of water quality change that warrants detailed water quality and economic impact analyses. Decision criteria could be based on direct measures, such as an absolute or percent change in ambient concentrations of the affected parameter or indirect measures such as changes in primary productivity caused by nutrients or changes in diurnal dissolved oxygen fluctuations.

Repeated or multiple small changes in water quality (such as those resulting from actions which do not require detailed analyses) can result in significant water quality degradation. To prevent such cumulative adverse impacts, a baseline of water quality must be established for each potentially affected water body, prior to allowing any action which would lower the quality of that water. This baseline should remain fixed unless some action improves water quality. At such time, the baseline should be adjusted accordingly.

Proposed actions to lower water quality should then be evaluated with respect to the baseline and the resultant water quality change should be determined. This determination should include the cumulative impacts of all previous and proposed actions and reasonably foreseeable actions which would lower water quality below the established baseline. Should the cumulative impact of actions significantly degrade water quality, more

Page 6 detailed water quality and economic impact analyses would be necessary.

In any case, whether or not water quality is significantly lowered (thus leading to an economic analysis), the State must find that any action which would lower water quality is necessary to accommodate important economic and social development. Such a finding must include, at a minimum, the following determinations:

1. That economic and social development will occur, e.g. there will be new or increased production of goods or services by the party proposing the change, population will grow in the service area of a sewage treatment plant, etc.

2. That this economic or social development requires the lowering of water quality which cannot be mitigated through reasonable means.

3. That the lower water quality does not result from inadequate wastewater treatment facilities, less-than-optimal operation of adequate treatment facilities, or failure to implement or comply with methodologies to reduce or eliminate non- point source pollution.

Task B - Determine that Lower Water Quality Will Fully Maintain and Protect Designated Uses

All actions that could lower water quality in Tier II waters require a determination that existing uses will be fully maintained and protected. States should develop methodologies for making this determination.

Tier II waters, by definition, are those in which the water quality is better than necessary to support and maintain the biota and beneficial uses of the water. In most cases, specific numerical standards do not exist to protect these uses. Where such standards do exist, they are generally established to provide the minimum acceptable quality to protect the beneficial uses of the water. Often, such standards are established on a statewide or drainage basin-wide basis and thus may not adequately protect the biota or the uses of specific reaches. Consequently, comparing existing or projected water quality with adopted standards may not adequately define whether or not beneficial uses will be fully maintained and protected.

Page 7 Water quality must also meet any applicable public health standards as well as maintain and protect the existing growth and reproduction of resident species. The water quality criteria guidance developed by EPA per §304(a) of the Clean Water Act provides a basis for this assessment. However, national water quality criteria (such as those contained in the "Gold Book") may not fully protect resident species. The criteria may not protect locally occurring species that either may not have been tested, or that have been tested, but require greater protection than the criteria provide. This determina- tion involves a comparison of the species upon which biological testing has been completed in the criteria development documents with the species resident to the water body where water quality may be lowered. If the resident species are not adequately represented in the database, additional testing should be completed before lower water quality is allowed. Implementation methods should include procedures for making this comparison and define the circumstances (e.g., in terms of water quality change or extent of the biological testing database) that would require additional biological testing before water quality can be lowered.

Water quality criteria for dissolved oxygen or conventional and non-conventional pollutants may be subject to the same limitations and should be considered in the same way. For parameters for which no criteria guidance has been developed, biological testing or acceptable site specific criteria may be used to determine that lower water quality will fully maintain and protect designated uses.

The lowering of water quality through the discharge of conservative or persistent pollutants merits more intensive consideration by States, due to the bioacculumative potential of these pollutants. These pollutants, particularly carcinogens, which are considered to have no safe "threshold" concentration, should have more stringent antidegradation requirements established for their analysis.

Other methods of determining whether or not beneficial uses are being maintained and protected include biological assessments, such as the aquatic ecoregions procedure, or ambient toxicity testing using standardized species. In some cases, assessing the quality of water bodies on a pollutant-specific basis could prove costly, particularly for waters in -which a number of

Page 8 discharges are located or for complex effluents. EPA's recently developed acute and chronic toxicity methodologies for assessing the toxicity of effluents or receiving waters could provide a more comprehensive and affordable alternative.

Task C - Determine that Lower Water Quality is Necessary to Accommodate Important Economic or Social Development

Actions which the State determines in Task A to significantly lower water quality require a determination that such actions are necessary for important economic or social development. 40 CFR 131.12(a)(2) and the August 1985 "Questions and Answers on Antidegradation", give general guidance on how to make this determination. Explicit criteria defining "important economic or social development" have purposely not been developed by EPA Headquarters, because of the varying environmental, economic and social conditions of localities throughout the country. Further explication of EPA Region 9's expectation concerning these determinations is appropriate and is presented below.

The fundamental requirement of this task is to establish a strong tie between the proposed lower water quality level and "important" economic or social development. If the party seeking the change in water quality cannot demonstrate the relationship between such development and water quality, then the proposed action is prohibited.

Demonstration of important economic or social development entails two steps. First, the party should describe and analyze the current state of economic and social development in the area that would be affected. The purpose of this step is to determine the "baseline" economic and social status of the affected community, i.e., the measure against which the effect of the water quality downgrade is judged. The area's use or dependence upon the water resource affected by the proposed action should be described in the analysis. The following factors should normally be included in the baseline analysis:

o Population

o Area employment (numbers employed, earnings, major employers);

o Area income (earnings from employment and transfer payments, if known);

Page 9 o Manufacturing profile: types, value, employment, trends;

o Government fiscal base: revenues by source (employment and sales taxes, etc.)

Second, the party seeking the change in water quality should then demonstrate the extent to which the sought-for level of water quality would create an incremental increase in the rate of economic or social development and why the change in water quality is necessary to achieve such development. The party should provide analysis, along with the supporting data used in its preparation, showing the extent to which the factors listed above will benefit from the change in water quality requested. The analysis should demonstrate why such economic and social development requires the lower water quality. other alterna- tives or changes in the project or other mitigation measures. which would prevent degradation of water quality should be identified in this analysis. The following factors may be included in the analysis of incremental effects expected to result from the degradation in water quality:

o Expected plant expansion;

O Employment growth;

O Direct and indirect income effects;

O Increases in the community tax base

Other components of this analysis could include an assessment of the overall environmental benefits to be achieved by the proposed action and the tradeoffs to be considered among the various media. The relative costs of various alternatives to the proposed action could also be analyzed.

The requirements for a given analysis will be site-specific, depending upon factors such as data availability, conditions specific to the relevant water body, the area of impact (city, county, State-wide), etc. The economic analysis may include estimation of the treatment costs necessary to maintain existing water quality; e.g. land treatment or advanced treatment. Staff of the EPA Regional office are available to assist States in determining the exact requirements of an analysis of

Page 10 specific proposals to lower water quality. In addition, the Economic Analysis Branch in EPA Headquarters' Office of Water can assist State and Regional staff, when necessary.

Task D - Complete Intergovernmental Coordination and Public Participation

Public notification pursuant to 40 CFR 131.12 is required for all actions that lower water quality in Tier II waters. EPA requires that proposed actions which degrade water quality be reviewed by other appropriate agencies and that the public be given an opportunity to comment.

Documentation and public notification under antidegradation need not be a lengthy process in many cases and can be combined with other actions that require public notification. The public participation requirement may be met by holding a public hearing, e.g., as part of the adoption of an NPDES permit, as long as proper notice of a standards action is provided to the public (see WQS Handbook). Intergovernmental coordination consists of requests for review of proposed actions by affected local, State and Federal agencies, such as area-wide planning agencies, fish and wildlife agencies, etc.

The following is a summary of the public notification required to comply with the antidegradation provisions of the WQS regulation:

o A statement that the action must comply with the State's antidegradation policy and a description of the policy.

o A determination that existing uses will be maintained and protected. This will require an assessment and documen- tation for public review of (a) the amount the water quality currently exceeds that necessary to protect the existing and designated uses, and (b) the amount that water quality will be lowered as a result of the proposed action (see Task A).

O A summary of other actions, if any, that have lowered water quality and a determination of any cumulative impacts.

o A determination that lower water quality is necessary to

Page 11 accommodate important economic or social development. This will require a detailed analysis or the rationale used to determine that a detailed analysis is not required (see Tasks A and C).

o A description of the intergovernmental coordination that has taken place.

O A determination that there has been achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reason- able best management practices for non-point sources.

OTHER CONSIDERATIONS

1. The decision criteria for determining that detailed water quality and economic analyses are needed may vary with the types of chemical pollutants. Some chemicals are believed to elicit an effect at a certain concentration (i.e., threshold chemicals). Other chemicals (i.e., non-threshold chemicals) have no safe level. Non-threshold chemicals include carcinogens, mutagens and teratogens. States are urged to apply more stringent review procedures to non-threshold chemicals.

2. NPDES permits do not routinely contain numerical limits for all of the substances found in a discharger's effluent. Nevertheless, all substances are subject to antidegradation policy implementation, whether or not they are specifically limited in the permit. To apply antidegradation to substances not currently limited in the permit, the State can utilize the notification procedures specified in 40 CFR 122.42, requiring dischargers to notify the State pollution control agency of any actual or anticipated change in effluent characteristics, as compared with those existing at the time the permit was issued.

Page 12 FIGURE 1

Antidegradation Flow Chart

*Significance level and effect of cumulative impacts as defined by State **Based on criteria defined by State