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

ENVIRONMENTAL PROTECTION surveyed, for example, are attributable comment period for this proposed rule AGENCY to storm sewer runoff. EPA believes that and ICR will be from date of publication the implementation of the six minimum in the Federal Register until April 9, 40 CFR Parts 122 and 123 measures, which focus on a ‘‘best 1998. management practices’’ (BMP) Public Meetings/Hearings. The public [No. W±97±12 (Proposed Rule) and No. W± approach, identified for the small meetings/hearings will include a 97±15 (Information Collection Request); presentation on the proposed rule and FRL±5937±8] municipalities in this proposal should significantly reduce pollutants in urban allow interested parties the opportunity RIN 2040±AC82 storm water compared to existing levels to provide written and/or oral in a cost effective manner. If after comments for the official record. Public National Pollutant Discharge implementing the six minimum meetings/hearings will be held at the Elimination SystemÐProposed measures there is still a water quality times and locations provided below. If Regulations for Revision of the Water problem, the municipality would all statements are finished before 4:00 Pollution Control Program Addressing expand or use better tailored BMPs in pm the hearings may be finished early. Storm Water Discharges their minimum measures to result in The hearing dates are: AGENCY: Environmental Protection water quality improvement. Similarly, 1. February 23, 1998, 1:00 p.m. to 4:00 Agency (EPA). EPA believes that implementation of p.m., Washington, DC BMP controls at small construction sites 2. February 25, 1998, 1:00 p.m. to 4:00 ACTION: Proposed rule. will also result in a significant reduction p.m., Boston, Massachusetts 3. February 27, 1998, 1:00 p.m. to 4:00 SUMMARY: The National Pollutant is pollutant discharges and an p.m., Atlanta, Georgia Discharge Elimination System (NPDES) improvement in surface water quality. EPA believes this rule will cost 4. March 2, 1998, 1:00 p.m. to 4:00 p.m., existing storm water program (Phase I) Chicago, Illinois is resulting in significant improvement significantly less than the existing 1995 rule that is currently in place, and will 5. March 4, 1998, 1:00 p.m. to 4:00 p.m., of surface water quality in the United Dallas, Texas result in significant monetized financial, States by reducing polluted runoff from 6. March 6, 1998, 1:00 p.m. to 4:00 p.m., recreational and health benefits, as well a large number of priority sources, San Francisco, California as benefits that EPA has been unable to including major industrial facilities, ADDRESSES: monetize, including reduced scouring Public Comments. All large and medium city storm sewers public comments regarding the (‘‘municipal separate storm sewer and erosion of streambeds, improved aesthetic quality of waters, reduced proposed rule shall be submitted by systems’’ or ‘‘MS4s’’), as well as mail to: ‘‘ATTN: Storm Water Proposed eutrophication of aquatic systems, construction sites that disturb 5 or more Rule Comment Clerk—W–97–12, Water benefit to wildlife and endangered and acres. Today’s proposed NPDES storm Docket, Mail Code 4101, EPA; 401 M threatened species, tourism benefits, water regulations (Phase II), which will Street, SW; Washington, DC 20460.’’ All biodiversity benefits and reduced siting be finalized by March 1, 1999, would public comments regarding the costs of reservoirs. In addition, there expand this existing national program to proposed amendment to the ICR shall be will be an economic savings from the smaller municipalities and construction submitted by mail to: ‘‘ATTN: Storm proposed ‘‘no exposure’’ streamlining. sites that disturb 1 to 5 acres. In this Water Proposed Rule ICR Comment The rule would provide for a NPDES expansion, EPA is proposing ‘‘safety Clerk—W–97–15, Water Docket, Mail program approach that: encourages the valves’’ which would allow certain Code 4101, EPA; 401 M Street, SW, sources to be excluded from the national use of general permits, provides Washington, DC 20460’’ and to the program based on the lack of impact on flexibility for municipalities to Office of Information and Regulatory water quality, as well as to pull in other determine the nature of storm water Affairs, Office of Management and sources not regulated on a national basis controls, provides flexibility in use of Budget, 725 17th Street, NW, based on localized adverse impact on watershed approaches, is consistent Washington, D.C. 20503, marked water quality. Finally, EPA is proposing with the existing storm water Phase I ‘‘Attention: Desk Officer for EPA.’’ to conditionally exclude from the program, recognizes and includes Please submit an original and three NPDES storm water program, industrial existing programs, utilizes the existing copies of your comments and enclosures facilities that have ‘‘no exposure’’ of NPDES program which is Federally (including references). Commenters who industrial activities to storm water, enforceable and takes advantage of want EPA to acknowledge receipt of thereby reducing application of the existing structures and mechanisms for their comments should enclose a self- program to many industrial activities public participation. EPA is inviting addressed, stamped envelope. No currently covered by the program that comment on alternative approaches that facsimiles (faxes) will be accepted. have no industrial storm water may be available to allow efficient and Comments may also be submitted discharges. This rule would establish a effective targeting of environmental electronically to ow- cost effective, flexible approach for problems for the Phase II program, [email protected]. Electronic reducing negative environmental impact without extension of the NPDES comments must be submitted as an by storm water discharges from these program to Phase II dischargers. EPA is ASCII file avoiding the use of special currently unregulated sources. committed to continue seeking the input characters or forms of encryption. The ‘‘National Water Quality of all stakeholders in the development Electronic comments must be identified Inventory, 1994 Report to Congress’’ of this proposed rule, including by the docket number (W–97–12 (storm indicates that storm water discharges continuing to seek input and advice water proposed rule) and W–97–15 from a variety of sources including from the Phase II Subcommittee of the (storm water proposed rule ICR)). separate storm sewers, construction, Urban Wet Weather Flows Federal Comments and data will also be waste disposal, and resource extraction Advisory Committee which was accepted on disks in WordPerfect in 5.1 activities are major causes of water established in 1995. format or ASCII file format. Electronic quality impairment; roughly 46 percent DATES: Public Comment Period for the comments on this notice may be filed of the identified cases of water quality Proposed Rule and Information online at many Federal Depository impairment of estuarine square miles Collection Request (ICR). The public Libraries. Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1537

To ensure that EPA can read, Examples of regulated H. Watershed-based Approach for Water understand and therefore properly Category entities Quality Programs respond to public comments, EPA II. Description of Proposed Program would prefer that commenters cite, Tribal Govern- Owners or operators of a A. Overview 1. Objectives EPA Seeks to Achieve in where possible, the paragraph(s) or ment. separate storm sewer system, or dischargers Today’s Proposal sections in the proposed rule language, of storm water associ- 2. General Requirements for Regulated preamble or supporting documents to ated with industrial ac- Entities Under Today’s Proposal which the comment refers. Commenters tivity. 3. Integration of Today’s Proposal With the should use a separate paragraph for each State Govern- Owners or operators of Existing Storm Water Program issue discussed. ment. small municipal sepa- 4. General Permits Public Hearings. The hearing rate storm sewer sys- 5. Tool Box locations are: tems. 6. Deadlines Established in Today’s Proposal 1. Washington, DC—Auditorium of the Local Govern- Owners or operators of ment. small municipal sepa- B. Readable Regulations USEPA Education Center, 401 M St. rate storm sewer sys- C. Program Framework SW, Washington, DC 20460 tems (serving popu- 1. Today’s Approach—The NPDES 2. Boston—John A. Volpe National lations less than Program Approach Transportation Systems Center— 100,000) and municipal 2. Alternatives Considered Auditorium (Bldg. #2), 55 construction and indus- a. State Alternative Non-NPDES Program trial activities. i. Alternative Overview Broadway—Kendall Square, ii. State-Proposed Program Criteria Industry ...... Owners or operators of Cambridge, MA 02142 iii. Proposed Procedure for Approval and industrial facilities who 3. Atlanta—Atlanta Federal Center, Periodic Review may be dischargers of (Room C, AFC Conference Center), iv. Proposed Procedure for Disapproval storm water associated 3. Permits Versus Non-Permits 61 Forsyth St. SW, Atlanta, GA with industrial or other D. Federal Role 30303–3104 activity. 1. Develop Overall Framework of the 4. Chicago—USEPA Region 5 (Rm 331) Construction Ac- Construction site owners Program 77 W. Jackson Blvd., Chicago, IL tivity. or operators. 2. Encourage Use of a Watershed Approach 60604–3590 Public ...... Persons who may want to 3. Provide Financial Assistance 5. Dallas—USEPA Region 6 (Regional participate in the peti- 4. Implement the Program for Non-NPDES Conference Room, 12th floor), 1445 tion process. Authorized States, Tribes, and Ross Ave., Dallas, TX 75202–2733 Territories 6. San Francisco—USEPA Region 9 This table is not intended to be 5. Oversee State Programs (Marianas/ Palau Room, First exhaustive, but rather provides a guide 6. Comply with Applicable Requirements Floor), 75 Hawthorne Street, San for readers regarding entities likely to be as a Discharger Francisco, CA 94105–3901 regulated by this action. This table lists E. State Role 1. Develop the Program Docket. The complete administrative the types of entities that EPA is now 2. Comply With Applicable Requirements record for the proposed rule and the ICR aware could potentially be regulated by as a Discharger have been established under docket this action. Other types of entities not 3. Communicate with EPA numbers W–97–12 (proposed rule) and listed in the table could also be F. Tribal Role W–97–15 (ICR), and includes regulated. To determine whether you 1. Background supporting documentation as well as are regulated by this action, you should a. EPA’s Indian Policy printed, paper versions of electronic carefully examine the applicability b. Existing NPDES Regulations for Storm comments. Copies of information in the criteria in §§ 122.26(b)(15), 122.31, Water 122.32, and 123.35 of the proposed rule. 2. Today’s Proposal record are available upon request. A 3. Other Relevant Issues reasonable fee may be charged for If you have questions regarding the G. NPDES Permitting Authority’s Role for copying. The record is available for applicability of this action to a the CWA section 402(p)(6) Municipal inspection and copying from 9 a.m. to particular entity, consult the person Program 4 p.m., Monday through Friday, listed in the preceding FOR FURTHER 1. Comply With Other Requirements excluding legal holidays at the Water INFORMATION CONTACT section. 2. Designate Sources a. Develop Designation Criteria Docket, EPA, Room 2616, 401 M Street, Table of Contents SW, Washington, D.C. For access to b. Apply Designation Criteria docket materials, please call 202/260– I. Background c. Designate Physically Interconnected Municipal Separate Storm Sewer 3027 to schedule an appointment. A. Water Quality Concerns/Environmental Impacts Systems FOR FURTHER INFORMATION CONTACT: 1. Studies and Assessments of Storm Water d. Address Public Petition for Designation George Utting, Office of Wastewater Runoff 3. Provide Waivers Management, Environmental Protection a. Urban Development 4. Issue Permits Agency, Mail Code 4203, 401 M Street, b. Illicit Discharges 5. Support and Oversee the Local Programs H. Municipal Role SW, Washington, DC 20460; (202) 260– c. Construction Site Runoff 1. Scope of Today’s Proposal 5816; [email protected]. d. Improper Disposal of Materials 2. Municipal Definition SUPPLEMENTARY INFORMATION: Entities B. Statutory Background a. Nationwide (‘‘Automatic’’) Designation potentially regulated by this action C. EPA’s Reports to Congress i. Urbanized Area Description include: D. EPA Regulations for the NPDES Program ii. Urbanized Area Profiles for Storm Water iii. Rationale for Using Urbanized Areas E. EPA Outreach Efforts b. Municipal Designation by the Permitting Category Examples of regulated entities F. The FACA Committee Effort Authority G. Related Nonpoint Source Programs c. Waiving the Requirements for Regulated Federal Govern- Owners or operators of 1. Section 319 of the Clean Water Act Small Municipal Separate Storm Sewer ment. municipal separate 2. Section 6217 of the Coastal Zone Act Systems storm sewer systems. Reauthorization Amendments i. Combined Sewer Systems 1538 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

d. Designation Alternatives Considered— CFR Citation: 40 CFR 122; 40 CFR 123. Storm water runoff from lands Preliminary Options I. Background modified by human activities can harm i. Designation Option 1 surface water resources, and, in turn, ii. Designation Option 2 A. Water Quality Concerns/ iii. Designation Option 3 violate water quality standards, in two 3. Municipal Permit Requirements Environmental Impacts ways: (1) by changing natural hydrologic patterns and (2) by elevating a. Program Requirements—Minimum In 1972, Congress amended the Control Measures pollutant concentrations and loadings. i. Public Education and Outreach on Storm Federal Water Pollution Control Act Storm water runoff may contain or Water Impacts (referred to as the Clean Water Act mobilize high levels of contaminants, ii. Public Involvement/Participation (CWA)) to prohibit the discharge of any such as sediment, suspended solids, iii. Illicit Discharge Detection and pollutant to waters of the United States nutrients, heavy metals, pathogens, Elimination from a point source unless the discharge iv. Construction Site Storm Water Runoff toxins, oxygen-demanding substances, is authorized by a National Pollutant and floatables. Such contaminants are Control Discharge Elimination System (NPDES) v. Post-Construction Storm Water carried to nearby streams, rivers, lakes, Management in New Development and permit. The NPDES program is a permit and estuaries. Individually and Redevelopment program designed to regulate point combined, these pollutants can reduce vi. Pollution Prevention/Good source discharges. water quality and threaten one or more Housekeeping for Municipal Operations Initial efforts to improve water quality designated beneficial uses. Often, an vii. Satisfaction of Minimum Measure under the NPDES program primarily Obligations increased volume of runoff or b. Application Requirements, Including focused on reducing pollutants in contaminants can lead to violations of Notice of Intent industrial process wastewater and applicable State water quality standards. c. Evaluation and Assessment municipal sewage. This focus developed i. Record Keeping because many sources of industrial 1. Studies and Assessments of Storm ii. Reporting process wastewater and municipal Water Runoff iii. Permit-As-A-Shield sewage were not adequately controlled a. Urban Development d. Other Applicable NPDES Requirements and represented immediate and pressing e. Enforceability In support of today’s proposal f. Deadlines environmental problems. Furthermore, regarding land development, the United g. Reevaluation of Rule these discharges were easily identified States Environmental Protection Agency I. Other Designated Storm Water as responsible for poor, often drastically (EPA) has relied on several broad-based Discharges degraded, water quality conditions. assessments of storm water runoff and 1. Background As pollution control measures for related water quality impacts, including: 2. Construction a. Scope industrial process wastewater and (1) Nationwide Urban Runoff Program b. Waivers municipal sewage were further (NURP) study (U.S. Environmental c. Permit Process and Administration developed, refined, and implemented, it Protection Agency, Office of Water d. Cross-Referencing State/Local Erosion became increasingly evident that more 1983. Final Report of the Nationwide and Sediment Control Programs diffuse sources of water pollution were Urban Runoff Program Washington, e. Alternative Approaches significant causes of water quality D.C.), (2) America’s Clean Water—The 3. Other Sources impairments. Specifically, storm water States’ Nonpoint Source Assessment 4. Residual Designation Authority J. Conditional Exemption for ‘‘No runoff draining large surface areas, such (Association of State and Interstate Exposure’’ of Industrial Activities and as agricultural and urban land, was Water Pollution Control Administrators Materials to Storm Water found to be a major cause of adverse 1985. America’s Clean Water—The 1. Background water quality impairment, including States’ Nonpoint Source Assessment. 2. Definition of ‘‘No Exposure’’ nonattainment of designated uses. In Prepared in cooperation with the U.S. 3. Options Considered 1987, Congress amended the CWA to Environmental Protection Agency, K. Public Involvement/Public Role require implementation of a Office of Water, Washington, D.C.), (3) L. Water Quality Issues comprehensive approach for addressing U.S. Geological Survey Urban-Storm 1. Water Quality Standards a. Permitting Policy storm water discharges under the Water Data Base for 22 Metropolitan 2. Total Maximum Daily Loads (TMDLs) NPDES program. Storm water Areas Throughout the United States 3. Anti-backsliding discharges have a number of (Driver, N.E., Mustard, M.H., 4. Monitoring environmental effects that can occur Rhinesmith, R.B. and Middleburg, R.F. III. Paperwork Reduction Act from land development, illicit 1985. U.S. Geological Survey Urban IV. Executive Order 12866 discharges, construction site runoff, and Storm Water Data Base for 22 V. Unfunded Mandates Reform Act/ improper disposal of materials. The Metropolitan Areas Throughout the Executive Order 12875 following section entitled, Studies and United States. U.S. Geological Survey A. UMRA Section 202 Written Statement B. Description of Intergovernmental Assessments of Storm Water Runoff, Report No. 85–337, Lakewood, CO.), Consultation discusses these four issues. Problems and (4) The National Water Quality C. Selection of the Least Costly, Most Cost- can also occur from agricultural storm Inventory, 1994 Report to Congress (U.S. Effective or Least Burdensome water discharges and return flows from Environmental Protection Agency, Alternative That Achieves the Objectives irrigated agriculture. This area of Office of Water 1995. National Water of the Statute concern, however, is statutorily Quality Inventory: 1994 Report to D. Small Government Agency Plan exempted from regulation under the Congress Washington, D.C. EPA 841–R– VI. Executive Order 12898 NPDES program (see CWA section 95–005.) These studies, which provide VII. Regulatory Flexibility Act A. Economic Impact on Small Entities 502(14)). Other sources may be of important data regarding storm water B. SBREFA Panel Process concern in certain areas and can be runoff and associated pollutant loads, VIII. National Technology Transfer and addressed on a case-by-case (or are briefly discussed below. (For an Advancement Act category-by-category) basis through the extensive summary and review of storm Legal Authority: 33 U.S.C. 1311; 33 U.S.C. NPDES permitting authority’s water research, see Makepeace, D.K., 1342; 33 U.S.C. 1361. designation authority. Smith, D.W., and S.J. Stanley 1995. Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1539

‘‘Urban Storm Water Quality: Summary urban runoff can be adversely affected and municipal sewage, combined sewer of Contaminant Data.’’ Critical Reviews by several sources of pollution that were overflows, and natural and other in Environmental Science and not directly evaluated in the study, sources. Technology, 25(2):93–139.). including illicit discharges, construction Leading sources of water quality The Nationwide Urban Runoff site runoff, and illegal dumping. The impairment nationwide identified in the Program (NURP) study, which was findings of the NURP study were report include diffuse sources (i.e., conducted to facilitate understanding of reinforced by findings reported in a urban storm water runoff—runoff from the nature of urban runoff from study entitled, U.S. Geological Survey- agricultural and urban sources, residential, commercial, and industrial Storm Water Data Base for 22 construction sites, land disposal of areas, is the largest study of storm water Metropolitan Areas Throughout the waste, and resource extraction), undertaken to date. One focus of the United States (Driver et al., 1985). This industrial process wastewaters, and NURP study was to characterize the report summarized monitoring data municipal point sources. The report water quality of discharges from compiled during the mid-1980s, identified industrial process separate storm sewer systems that drain covering 717 storm events at 99 sites in wastewaters as a leading source of residential, commercial, and light 22 metropolitan areas. In sum, the U.S. pollution for 11 percent of impaired industrial (industrial parks) sites. Storm Geological Survey (USGS) monitoring acres of lakes, ponds, and reservoirs and water samples from 81 residential and most consistently observed problems of for 27 percent of acres of estuaries. The commercial properties in 22 urban/ metals and sediment concentrations in report cited municipal point sources as suburban areas nationwide were urban storm water runoff. a leading source of pollution for 17 collected and analyzed during a 5-year The report entitled, America’s Clean percent of impaired rivers and streams, period, between 1978 and 1983. The Water—the States’ Nonpoint Source 19 percent of impaired lakes, ponds, majority of samples collected in the Assessment (ASIWPCA, 1985), is a and reservoirs, and 39 percent of study were analyzed for eight comprehensive study of diffuse impaired estuaries. The report further conventional pollutants and three pollution sources. Conducted under the assessed pollution from diffuse sources, metals. sponsorship of the Association of State including storm water runoff from Data collected under the NURP study and Interstate Water Pollution Control agricultural and urban sources, indicated that discharges from separate Administrators (ASIWPCA) and EPA, construction sites, land disposal of storm sewer systems draining runoff the study revealed that 38 States waste, and resource extraction and from residential, commercial, and light reported urban runoff as a major cause indicated that diffuse sources were a industrial areas carried more than ten of designated beneficial use impairment leading cause of impaired waters, as times the level of total suspended solids and 21 States reported storm water follows. Twelve percent of rivers and (TSS) on an annual loading basis, as runoff from construction sites as a major streams were impaired by urban runoff/ discharges from municipal sewage cause of use impairment. storm sewers, and 11 percent were treatment plants that provide secondary The National Water Quality impaired by resource extraction. treatment. The study compared TSS in Inventory, 1994 Report to Congress (U.S. Eighteen percent of lakes, ponds, and runoff from residential and commercial EPA, 1995b) provides a national reservoirs impaired by urban runoff/ sites (180 mg/l) with TSS in effluent assessment of water quality, based on storm sewers, and 11 percent were from treatment plants providing biennial reports submitted by the States impaired by land disposal of wastes. secondary treatment (25 mg/l). The under 305(b) of the CWA. In the 305(b) Forty-six percent of estuaries were NURP study also indicated that runoff reports, States, Tribes, and Territories impaired by urban runoff/storm sewers, from residential and commercial areas assess their individual water quality and 13 percent were impaired by land carried somewhat higher annual control programs by examining disposal of wastes. It should be noted loadings of chemical oxygen demand attainment or nonattainment of that storm water runoff from urban areas (COD), total lead, and total copper designated uses. A designated use is the contributes a much broader range of compared to effluent from secondary legally applicable use specified in a pollutants than the section 305(b) treatment plants. water quality standard for a watershed, reports are intended to evaluate. When analyzing annual loadings waterbody, or segment of a waterbody. associated with storm water runoff, it is As such, each 305(b) report must b. Illicit Discharges important to note that discharges indicate the fraction of a States’ waters Studies have shown that storm water associated with urban runoff are highly that are fully supporting, partially discharges from separate storm sewer intermittent and that short-term supporting, or not supporting systems often include wastes and loadings may have shock loading effects designated beneficial uses. Designated wastewater from non-storm water on receiving water, such as low uses include support of aquatic life or sources, commonly referred to as illicit dissolved oxygen levels. NURP study water-contact recreation. discharges. These discharges are findings also showed that fecal coliform The 1994 Report to Congress—based ‘‘illicit’’ because the storm sewer counts in urban runoff are typically in on a compilation of 60 individual 305(b) systems are not designed to accept and the tens to hundreds of thousands per reports submitted by States, Tribes, and discharge, or to process, such wastes. hundred milliliter of runoff during Territories—assessed the following These discharges would be required to warm weather conditions, although the percentages of total waters nationwide: be permitted under the CWA. As a study suggested that fecal coliform may 17 percent of river and stream miles, 42 result, illicit discharges to separate not be the most appropriate indicator percent of lake, pond, and reservoir storm sewer systems can create severe organism for identifying potential health acres, and 78 percent of estuary square widespread contamination and water- risks in storm water runoff. miles. In waterbodies where designated quality problems. A particular problem Monitoring data summarized in the beneficial uses were not being met, involves illicit discharges of sanitary NURP study provide important States, Tribes, and Territories first wastes that can be directly linked to information about urban runoff from identified and then assigned water high bacterial counts in receiving waters residential, commercial, and light quality impairments based on the and can be dangerous to public health. industrial areas. The NURP study did following categories of sources: diffuse The NURP study, discussed conclude, however, that the quality of sources, industrial process wastewaters previously, determined that during 1540 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules substantial dry periods, many storm (Novotny, V. and G. Chesters. 1989. sediment because rain splash, rills (i.e., water outfalls continue to discharge to ‘‘Delivery of Sediment and Pollutants a channel small enough to be removed receiving waterbodies. Pollutant levels from Nonpoint Sources: A Water by normal agricultural practices and in these flows, which are commonly Quality Perspective.’’ Journal of Soil typically less than 1 foot deep), and referred to as dry weather flows, were and Water Conservation, 44(6): 568– sheetwash (California Storm Water Best shown to be high enough to 576.). Estimates indicate that 80 percent Management Practice Handbooks— significantly degrade receiving water of the phosphorus and 73 percent of the Construction Activity, Blue Print quality. Kjeldahl nitrogen in streams is Service, Oakland, CA.) encourage the The Ann Arbor and Ypsilanti water associated with eroded sediment detachment and transport of this quality projects inspected 660 (USDA. 1989. The Second RCA material to waterbodies. Forest road businesses, homes, and other buildings Appraisal, Soil, Water and Related construction sites in steep areas or along and identified 14 percent of the Resources on Nonfederal Land in the stream banks, however, may initiate buildings as having improper storm United States, Analysis of Condition landslides, debris flows, or other types sewer drain connections. The program and Trends, cited in Fennessey, L.A.J., of mass wasting events (Megahan, W.F. assessment revealed that, on average, 60 and A.R. Jarrett. 1994. ‘‘The Dirt in a 1984. ‘‘Road Effects and Impacts— percent of automobile-related Hole: a Review of Sedimentation Basins Watershed.’’ In Proceedings, Forest businesses, including service stations, for Urban Areas and Construction Transportation Symposium, USDA automobile dealerships, car washes, Sites.’’ Journal of Soil and Water Forest Service Region 2, Lakewood, CO. body shops, and light industrial Conservation, 49(4): 317–323.). pp, 57–97). In these cases, coarse facilities, had illicit connections to In watersheds experiencing intensive sediment inputs may be of greatest storm sewer drains. The program construction activity, the localized concern. Construction sites can also assessment also showed that a majority impacts of water quality may be severe generate other pollutants associated of the illicit discharges to the storm because of high pollutant loads, with wastes onsite such as sanitary sewer system resulted from improper primarily sediments. Siltation is the wastes or concrete truck washout. plumbing and connections, which had second largest cause of impaired water Although streams and rivers naturally been approved by the municipality quality in rivers and lakes (U.S. EPA, carry sediment loads, erosion from when installed. (Huron River Pollution 1995b, p. ES–8.). Introduction of coarse construction sites and runoff from Abatement Program, Washtenaw sediment (coarse sand or larger) or a developed areas can elevate these loads County Statutory Drainage Board, 1987.) large amount of fine sediment is also a Inflows from aging sanitary sewer concern because of the potential of to levels well above those in collection systems are another illicit filling lakes and reservoirs (along with undisturbed watersheds. It is generally discharge-related problem. Sanitary the associated remediation costs for acknowledged that erosion rates from sewer systems frequently develop leaks dredging), as well as clogging stream construction sites are much greater than and cracks resulting in discharges of channels (e.g., Paterson, R.G., Luger, from almost any other land use pollutants to receiving waters through M.I., Burby, E.J., Kaiser, E.J., Malcolm, (Novotny, V. and H. Olem. 1994. Water separate storm sewers. These pollutants H.R., and A.C. Beard. 1993. ‘‘Costs and Quality: Prevention, Identification, and include sanitary waste and sewer main Benefits of Urban Erosion and Sediment Management of Diffuse Pollution. Van construction materials (e.g., asbestos Control: North Carolina Experience.’’ Nostrand Reinhold, NY. p. 36.). Results cement, brick, cast iron, vitrified clay). Environmental Management, 17(2):167– from both field studies and erosion Municipalities have long recognized the 178.). Large inputs of coarse sediment models indicate that erosion rates from problems of storm water infiltration into into stream channels will initially construction sites are typically an order sanitary sewer collection systems, reduce stream depth and minimize of magnitude larger than row crops and because this type of infiltration often habitat complexity by filling in pools several orders of magnitude greater than disrupts the operation of the municipal (U.S. Environmental Protection Agency. rates from well-vegetated areas, such as sewage treatment plant. However, the 1991. Monitoring Guidelines to Evaluate forests or pastures (U.S. Department of reverse problem of sewage exfiltration Effects of Forestry Activities on Streams Agriculture, Soil Conservation Service. out of the sanitary sewer collection in the Pacific Northwest and Alaska. 1970. Controlling Erosion on system into the storm water collection Seattle, WA: Region 10, Water Division. Construction Sites. Agriculture system can occur during dry weather 166 pp. EPA/910/9–91–001.). In Information Bulletin, Washington, D.C. periods. addition, studies have shown that 32 pp.; Meyer, L.D., Wischmeier, W.H., stream reaches affected by construction and W.H. Daniel. 1971. ‘‘Erosion, Runoff c. Construction Site Runoff activities often extend well downstream and Revegetation of Denuded Storm water discharges generated of the construction site. For example, Construction Sites.’’ Transactions of the during construction activities can cause between 4.8 and 5.6 kilometers of ASAE, 14(1):138–141; Owen, O.S. 1975. an array of water quality impacts. stream below construction sites in the Natural Resource Conservation. Specifically, the biological, chemical, Patuxent River watershed were observed MacMillan, New York as cited in and physical integrity of the waters may to be impacted by sediment inputs (Fox, Paterson, R.G., Luger, M.I., Burby, R.J., become severely compromised. Water H.L. 1974. Effects of Urbanization on Edward, J.K., Malcom, H.R., and A.C. quality impairment results, in part, the Patuxent River, with Special Beard. 1993. ‘‘Costs and Benefits of because a number of pollutants are Emphasis on Sediment Transport, Urban Erosion and Sediment Control: preferentially absorbed onto mineral or Storage, and Migration. Ph.D. The North Carolina Experience.’’ organic particles found in fine sediment. Dissertation, Johns Hopkins University, Environmental Management, 17(2): The interconnected process of erosion Baltimore, Maryland, 276 pp. as cited in 167–178.). Wolman and Schick (detachment of the soil particles), Klein, R.D. 1979. ‘‘Urbanization and (Wolman, M.G. and A.P. Schick. 1967. sediment transport and delivery is the Stream Quality Impairment.’’ Water ‘‘Effects of Construction on Fluvial primary pathway for introducing key Resources Bulletin, 15(4): 948–963.). Sediment, Urban and Suburban Areas of pollutants, such as nutrients A primary concern at most Maryland.’’ Water Resources Research, (particularly phosphorus), metals, and construction sites is the erosion and 3(2): 451–464) studied the impacts of organic compounds into aquatic systems transport process related to fine development on fluvial systems in Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1541

Maryland and determined that sediment yield from the construction area was 37 sediment can cause a number of other yields in areas undergoing construction tons/acre over a 2-year period (Hainly, problems for waterbodies. It is were 1.5 to 75 times greater than R.A. 1980. The Effects of Highway associated with increased turbidity and detected in natural or agricultural Construction on Sediment Discharge reduced light penetration in the water catchments. The authors summarize the into Blockhouse Creek and Stream column, as well as more long-term potential impacts of construction on Valley Run, Pennsylvania. U.S. effects associated with habitat sediment yields by stating that ‘‘the Geological Survey Water Resources destruction and increased difficulty in equivalent of many decades of natural Investigations Report 80–68, Harrisburg, filtering drinking water. or even agricultural erosion may take PA. 50pp.). A more recent study in Numerous studies have examined the place during a single year from areas Hawaii showed that highway effect that excess sediment has on cleared for construction.’’ (Wolman and construction increased suspended aquatic ecosystems. For example, Schick, 1967) sediment loads by 56 to 76 percent in sediment from road construction Similar impacts from storm water three small (1 to 4 sq. mi.) basins (Hill, activity in Northern Virginia reduced runoff have been reported in a number B.R. 1996. Streamflow and Suspended- aquatic insect and fish communities by of other studies. For example, Daniel et Sediment Loads Before and During up to 85 percent and 40 percent, al. monitored three residential Highway Construction, North Halawa, respectively (Reed, J.R. 1997. Stream construction sites in southeastern Haiku, and Kamooalii Drainage Basins, Community Responses to Road Wisconsin and determined that annual Oahu, Hawaii, 1983–91. U.S. Geological Construction Sediments. Bulletin No. sediment yields were more than 19 Survey Water Resources Investigations 97. Virginia Water Resources Research times the yields from agricultural areas Report 96–4259, Honolulu, HI. 34pp.) A Center, Virginia Polytechnic Institute, (Daniel, T.C., McGuire, D., Stoffel, D., 1970 study determined that sediment Blacksburg, Virginia, as cited in Klein, and B. Miller. 1979. ‘‘Sediment and yields from construction areas can be as R.D. 1990. A Survey of Quality of Nutrient Yield from Residential much as 500 times the levels detected Erosion and Sediment Control and Construction Sites.’’ Journal of in rural areas (National Association of Storm Water Management in the Environmental Quality, 8(3): 304–308.). Counties Research Foundation. 1970. Chesapeake Bay Watershed. Chesapeake Studies have examined the effects of Urban Soil Erosion and Sediment Bay Foundation, Annapolis, MD.) Other road construction on erosion rates and Control. U.S. Department of the Interior, studies have shown that fine sediment sediment yields in forested areas. In Federal Water Quality Administration, (fine sand or smaller) adversely affects northern Idaho, the erosion rate per unit Water Pollution Control Research aquatic ecosystems by reducing light area of surface cleared for logging road Series, Program #15030 DTL, penetration, impeding sight-feeding, construction averaged 220 times the Washington, D.C.) smothering benthic organisms, abrading erosion rate of undisturbed areas over a Yorke and Herb (Yorke, T.H., and W.J. gills and other sensitive structures, 6-year period (Megahan, W.F., and W.J. Herb. 1978. Effects of Urbanization on reducing habitat by clogging interstitial Kidd. 1972. Effects of Logging Roads on Streamflow and Sediment Transport in spaces within a streambed, and Sediment Production Rates in the Idaho the Rock Creek and Anacostia River reducing the intergravel dissolved Batholith. USDA Forest Service Basins, Montgomery County, Maryland, oxygen by reducing the permeability of Research Paper INT–123, Odgen, UT. 1962–74. U.S. Geological Survey the bed material (Everest, F.H., Beschta, 14pp.). Other studies have documented Professional Paper 1003, Washington, J.C., Scrivener, K.V., Koski, J.R., Sedell, increased surface erosion following DC.) evaluated nine subbasins in the J.R., and C.J. Cederholm. 1987. ‘‘Fine logging road construction, but at Maryland portion of the Anacostia Sediment and Salmonid Production: A increases smaller than the 220-fold watershed for more than a decade in an Paradox.’’ Streamside Management: increase reported in the 1972 study effort to define the impacts of changing Forestry and Fishery Interactions, (Megahan, 1984). land use/land cover on sediment in Contract No. 57, Institute of Forest A highway construction project in runoff. Average annual suspended Resources, University of Washington, West Virginia disturbed only 4.2 percent sediment yields for construction sites Seattle, WA. pp.98–142. For example, of a 4.72 square mile basin, but resulted ranged from 7 to 100 tons/acre. Daniel 4.8 and 5.6 kilometers of stream below in a three-fold increase in suspended et al. (Daniel et al., 1979) identified total construction sites in the Patuxent River sediment yields (Downs, S.C., and D.H. storm runoff, followed by peak storm watershed in Maryland were found to Appel. Progress Report on the Effects of runoff, as the most influential factors have fine sediment amounts 15 times Highway Construction on Suspended- controlling the sediment loadings from greater than normal (Fox, 1974 as cited Sediment Discharge in the Coal River residential construction sites. in Klein, 1979). Benthic organisms in and Trace Fork, West Virginia. U.S. Storm water discharges from the streambed can be smothered by Geological Survey Water Resources construction sites that occur when the sediment deposits, causing changes in Investigations Report 84–4275, land area is disturbed (and prior to aquatic flora and fauna such as fish Charleston, WV. 20pp.). During the surface stabilization) can severely species composition (Wolman and largest storm event, it was estimated impact designated uses. Examples of Schick, 1967). In addition, the primary that 80 percent of the sediment in the designated uses include public water cause of coral reef degradation in coastal stream originated from the construction supply, recreation, and propagation of areas is attributed to land disturbances site. As is often the case, the increase in fish and wildlife. The siltation process and dredging activities due to urban suspended sediment load could not be described previously can threaten all development (Rogers, C.S. 1990. detected further downstream, where the three designated uses by (1) depositing ‘‘Responses of Coral Reefs and Reef drainage area was more than 50 times high concentrations of pollutants in Organizations to Sedimentation.’’ larger (269 sq. mi.). Another study public water supplies, (2) decreasing the Marine Ecology Progress Series, 62:185– evaluated the effect of 290 acres of depth of a waterbody which can result 202.). highway construction on watersheds in its limited use by boaters, swimmers, While most of the published data are ranging in size from 5 to 38 square and other recreational enthusiasts, and from construction sites larger than 5 miles. Suspended sediment loads in the (3) directly impacting the habitat of fish acres, there are no compelling reasons smallest watershed increased by 250 and other aquatic species which can why erosion rates and sediment yields percent, and the estimated sediment limit their ability to reproduce. Excess from smaller (less than 5 acres) 1542 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules construction sites should be In addition, data on the total acreage assume that materials discharged to a substantially different than those from disturbed by smaller construction sites catchbasin will reach an appropriate larger (more than 5 acres) construction have been collected recently in two municipal sewage treatment plant. sites. The limited amount of data States (MacDonald, 1997). The most Materials that are commonly disposed suggests that sediment yields from small recent and complete data set is the of improperly include used oil; sites are as high as or higher than the listing of the disturbed area for each of household toxic materials; radiator 20 to 150 tons/acre/year measured from the 3,831 construction sites permitted in fluids; and litter, such as disposable larger sites (MacDonald, L.H. 1997. North Carolina for 1994–1995 and cups, cans, and fast-food packages. EPA Technical Justification for Regulating 1995–1996. Nearly 61 percent of the believes that there has been increasing Construction Sites 1–5 Acres in Size. sites that were 1 acre or larger were success in addressing these problems Unpublished report submitted to the between 1.0 and 4.9 acres in size. This through alternatives such as recycling U.S. Environmental Protection Agency, proportion was consistent between and household pickup programs. Washington, DC. 28 pp.) Furthermore, years. Data showed that this range of B. Statutory Background logic suggests that the cumulative sites accounted for 18 percent of the effects of numerous small sites will have total area disturbed by construction. The In 1972, Congress enacted the CWA to impacts similar to those of larger sites values showed very little variation prohibit the discharge of any pollutant in a particular area. between the 2 years of data. The total to waters of the United States from a The expected contribution of small disturbed area for all sites over this 2- point source unless the discharge is sites to total sediment yields depends, year period was nearly 33,000 acres, or authorized by an NPDES permit. in part, on the extent to which erosion about 0.1 percent of the total area of Congress added CWA section 402(p) in and sedimentation controls are being North Carolina. 1987 to require implementation of a applied. Current storm water regulations As in many metropolitan areas, nine comprehensive approach for addressing require erosion and sedimentation counties in the San Francisco Bay area storm water discharges. Section controls on larger sites in urban areas only require ESC permits for sites larger 402(p)(1) prohibits EPA or NPDES- which suggests that in the absence of than 5 acres. Nearly 70 percent of the authorized States or Tribes from any erosion and sedimentation controls 542 permits issued in the Bay area requiring NPDES permits for discharges smaller construction sites contribute a during the last 3 years were for sites composed entirely of storm water disproportionate amount of the total between 5 and 25 acres in size. (‘‘storm water discharges’’) until Conversations with several sediment from construction activities October 1, 1992, except for the municipalities indicate that there may (MacDonald, 1997). Another view that following five classes of storm water be as many as five construction sites supports the need for controls on discharges specifically listed under smaller than 5 acres for every site larger smaller construction sites is that smaller section 402(p)(2): than 5 acres (MacDonald, 1997). Given sites are less likely to have an effective (A) a discharge subject to an NPDES the available data, MacDonald (1997) plan to control erosion and permit before February 4, 1987 estimates that construction sites less sedimentation, that these plans are less (B) a discharge associated with than 5 acres probably account for likely to be properly implemented and industrial activity slightly less than one-third of the total maintained, and that small sites are less (C) a discharge from a municipal area under construction. Regulating separate storm sewer system serving likely to be inspected (Brown, W. and D. construction sites 1 to 5 acres in size a population of 250,000 or more Caraco. 1997. Controlling Storm Water will probably increase the amount of (D) a discharge from a municipal Runoff Discharges from Small area being regulated by approximately separate storm sewer system serving Construction Sites: A National Review. 20 to 30 percent. Given the high erosion a population of 100,000 or more but Submitted to the U.S. Environmental rates associated with most construction less than 250,000 Protection Agency, Office of Wastewater sites, this indicates that small (E) a discharge that an NPDES Management, Washington, DC. by the construction sites can be a significant permitting authority determines to Center for Watershed Protection, Silver source of water quality impairment, be contributing to a violation of a Spring, MD). Sediment delivery in particularly in small watersheds that are urban areas should produce little undergoing rapid development. water quality standard or a difference between larger and smaller significant contributor of pollutants construction sites because the runoff d. Improper Disposal of Materials to the waters of the United States. from either site is usually delivered Improper disposal of materials may The October 1992 deadline was later directly to the storm drain network. result in contaminated discharges from extended to October 1, 1994, by the Any assessment of impacts from separate storm sewer systems in two Water Resources Development Act of smaller construction sites should ways. First, materials may be disposed 1992. consider the proportion of a particular of directly in a catch basin or other Congress clarified and amended the area that is associated with small storm water conveyance. Second, requirements for NPDES permits for construction activity. Brown and Caraco materials disposed of on the ground storm water discharges in section (Brown and Caraco, 1997) surveyed 219 may either drain directly to a storm 402(p)(3)(A). This section requires storm local jurisdictions to assess erosion and sewer or be washed into a storm sewer water discharges associated with sediment control (ESC) programs. during a storm event. Improper disposal industrial activity to meet all applicable Seventy respondents provided data on of materials to street catchbasins and provisions of section 402 and section the number of ESC permits for other storm sewer inlets often occurs 301 of the CWA, including technology- construction sites smaller than 5 acres. because many people mistakenly based requirements and any more In 27 cases (38 percent of the believe that disposal to such areas is an stringent requirements necessary to respondents), more than three-quarters environmentally sound practice. Part of meet water quality standards. Section of the permits were for sites smaller the confusion may occur because some 402(p)(3)(B) establishes NPDES permit than 5 acres; in another 18 cases (26 areas are served by combined sewer standards for discharges from municipal percent), more than half of the permits systems, which are part of the sanitary separate storm sewer systems. NPDES were for sites smaller than 5 acres. sewer collection system, and people permits for discharges from municipal Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1543 separate storm sewer systems (1) may be 122.26(e)(1); 57 FR 11524, April 2, 1992 specifically sources that EPA expected issued on a system or jurisdiction-wide (reservation of NPDES application to contribute to storm water basis, (2) must include a requirement to deadlines for ISTEA facilities). contamination due to the activities effectively prohibit non-storm water conducted and pollutants anticipated C. EPA’s Reports to Congress discharges into the storm sewers, and onsite (e.g., vehicle maintenance, (3) must require controls to reduce Under CWA section 402(p)(5), EPA, in machinery and electrical repair, and pollutant discharges to the maximum consultation with the States, was intensive agricultural activities). extent practicable, including best required to conduct a study, first, to EPA reported on the latter component management practices. As with all point identify unregulated sources of storm of the section 402(p)(5) study via source discharges under the CWA, water discharges, as well as to President Clinton’s Clean Water storm water discharges are subject to determine the nature and extent of Initiative, which was released on more stringent limitations when pollutants in such discharges. Second, February 1, 1994 (U.S. Environmental necessary to meet applicable water- the study was to establish procedures Protection Agency, Office of Water. quality based standards pursuant to and methods of control of such 1994. Clinton’s Clean Water Initiative. CWA section 301(b)(1)(C). discharges to the extent necessary to Washington, D.C. EPA 800–R–94–001). In CWA section 402(p)(4), Congress mitigate impacts on water quality. This report addresses a number of issues established statutory deadlines for the Section 402(p)(5) also required EPA to associated with NPDES requirements for initial steps in implementing the NPDES report the results of the first two storm water discharges and proposes (1) program for storm water. This section components of that study to Congress by establishing a phased compliance with required development of NPDES permit October 1, 1988, and the final report by a water quality standards approach for application regulations, submission of October 1, 1989. discharges from municipal separate NPDES permit applications, issuance of In March 1995, EPA submitted a storm sewer systems with priority on NPDES permits sources covered by report wherein EPA reviewed and controlling discharges from municipal section 402(p)(2), and compliance with analyzed municipal and industrial growth and development areas, (2) NPDES permit conditions. This section facilities not already regulated under the clarifying that the maximum extent instructed EPA to issue regulations initial NPDES regulations for storm practicable standard should be applied specifying NPDES permitting water (U.S. Environmental Protection in a site-specific, flexible manner, taking application requirements by February 4, Agency, Office of Water. 1995. Storm into account cost considerations as well 1989. In addition, this section required Water Discharges Potentially Addressed as water quality effects, (3) providing an industrial facilities and large municipal by Phase II of the National Pollutant exemption from the NPDES program for separate storm sewer systems to submit Discharge Elimination System Storm storm water discharges from industrial NPDES permit applications by February Water Program: Report to Congress. facilities with no activities or no 4, 1990. Medium municipal separate Washington, D.C. EPA 833–K–94–002). significant materials exposed to storm storm sewer systems were to submit The report also analyzed associated water, (4) providing extensions to the NPDES permit applications by February pollutant loadings and water quality statutory deadlines to complete 4, 1992. EPA was required to issue or impacts from these unregulated sources. implementation of the NPDES program deny all NPDES permits 1 year after Based on identification of unregulated for the storm water program, (5) each of the respective deadlines, and municipal sources and analysis of targeting urbanized areas for the facilities must comply with all permit information on impacts of storm water requirements in the NPDES program for conditions within 3 years of final discharges from municipal sources, the storm water, and (6) providing control NPDES permit issuance. All other storm report recommended that the storm of discharges from inactive and water discharges fell under the statutory water program focus on the 405 abandoned mines located on Federal moratorium for the requirement for an ‘‘urbanized areas’’ identified by the lands in a more targeted, flexible NPDES permit. EPA and authorized Bureau of the Census. The report further manner. NPDES States were prohibited from found that a number of discharges from D. EPA Regulations for the NPDES requiring a permit for such sources until unregulated industrial facilities Program for Storm Water October 1, 1994. warranted further investigation to Congress granted extensions to the determine the need for regulation. The The purpose of the regulations is to NPDES permit application process for report classified these unregulated protect water quality. EPA’s findings are selected classes of discharges associated industrial discharges in two groups, explained in Section I.A. For the final with industrial activity. On December Group A and Group B. Group A step in implementation of the point 18, 1991, Congress enacted the included sources that may be source control program for storm water, Intermodal Surface Transportation considered a high priority for inclusion CWA section 402(p)(6) requires EPA, in Efficiency Act (ISTEA), which extended in the NPDES program for storm water consultation with States and local NPDES permit application deadlines for because discharges from these sources officials, to issue regulations for the most storm water discharges associated are similar or identical to regulated designation of the remaining with industrial activity from facilities sources. These ‘‘look alike’’ sources unregulated discharges to be regulated that are owned or operated by certain were not regulated in the initial NPDES to protect water quality based on studies municipalities. EPA and States regulations for storm water due to the conducted under section 402(p)(6), authorized to administer the NPDES language used to define ‘‘associated which is discussed below. Under program could not require any with industrial activity.’’ In the initial section 402(p)(6), EPA is to establish an municipality with a population of less regulations for storm water, ‘‘industrial extension of the existing storm water than 100,000 to apply for or obtain an activity’’ is identified using Standard program to regulate newly designated NPDES permit for any storm water Industrial Classification (SIC) codes. sources. At a minimum, the extension discharge associated with industrial The use of SIC codes lead to incomplete must establish (1) priorities, (2) activity prior to October 1, 1992, except categorization of industrial activities requirements for State storm water for storm water discharges from an with discharges that needed to be management programs, and (3) airport, power plant, or uncontrolled regulated to protect water quality. expeditious deadlines. The section sanitary landfill. See 40 CFR Group B included 18 industrial sectors, 402(p)(6) program may include 1544 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules performance standards, guidelines, developing new NPDES storm water sources for control under a State water guidance, and management practices regulations: (1) how should EPA quality program other than the NPDES and treatment requirements, as identify unregulated sources of storm program. appropriate. For additional background water to protect water quality, (2) what (Appendix I, ‘‘Report on the EPA information about the initial steps in the types of control strategies should EPA Storm Water Management Program NPDES program for storm water, see 55 develop for these sources, and (3) what (Rensselaerville Study).’’ EPA, 1995a). FR 47990, November 16, 1990 (final are appropriate deadlines for EPA also conducted outreach with regulations under CWA sections implementing new requirements. representatives of small entities in 402(p)(3) and (p)(4)); 60 FR 40230, The September 9, 1992, notice conjunction with the convening of a August 7, 1995 (final regulations presented a range of alternatives under Small Business Advocacy Review Panel establishing permit application each issue in an attempt to illustrate, under the Small Business Regulatory deadlines under section 402(p)(6)). EPA and obtain input on, the full range of Enforcement Fairness Act (SBREFA). is currently subject to a consent order to potential approaches for the regulation EPA, in consultation with the Small propose supplemental rules under of unregulated sources to protect water Business Administration, invited 29 section 402(p)(6) by November 25, 1997 quality. The notice recognized that small entity representatives and (on July 16, 1997, EPA filed papers to potential sources for coverage under the streamlining representatives to seek an extension of the signature date section 402(p)(6) regulations would fall participate in this outreach effort. Many for today’s proposal from the original into two main categories: municipal of the representatives contacted in this date of September 1, 1997 to the current separate storm sewer systems and outreach had been working closely with date) and to finalize these rules by individual (commercial and residential) EPA in developing this proposed rule March 1, 1999. See Natural Resources sources. EPA recognized that a major through the FACA Committee and the Defense Council, Inc. v. Browner, Civ. distinction between most options for Storm Water Phase II FACA No. 95–634 PLF (D.D.C., April 7, 1995). identifying sources to be regulated was Subcommittee. The further discussion The Agency and NRDC also entered into either to require targeted municipalities of this process is found at Section VII, a settlement agreement to address the to develop source controls and Regulatory Flexibility Act. portions of the existing storm water management programs for storm water In May 1997, EPA conducted two rules remanded by the 9th Circuit discharges within their jurisdictions or telephone conference calls and held an according to the same schedule as the to require permits for discharges from all-day meeting at EPA headquarters to consent order. facilities on an individual basis. solicit the advice and recommendations The United States District Court for EPA received more than 130 of representatives. EPA eventually the District of Columbia entered a comments on the September 9, 1992, received 12 sets of written comments consent decree to resolve this litigation. notice. Approximately 43 percent of the from representatives (see Small EPA and NRDC have also stipulated to comments came from municipalities, 29 Business Advocacy Review Panel a modification of a companion percent from trade groups or industries, (SBREFA). August 7, 1997. Final Report settlement agreement to extend the date 24 percent from State or Federal on EPA’s Planned Proposed Rule for the for proposal of regulations to address agencies, and approximately 4 percent National Pollutant Discharge portions of the existing storm water from other miscellaneous sources. No Elimination System: Storm Water Phase regulations (no exposure and comments were received from II.) On June 19, 1997, the Small construction below 5 acres), which were environmental groups. For further Business Advocacy Review Panel was remanded to the Agency by the U.S. discussion of the comments received, convened to review the proposed rule. Court of Appeals for the Ninth Circuit. see Storm Water Discharges Potentially The panel consisted of officials from In today’s notice, EPA is proposing to Addressed by Phase II of the National EPA, the Small Business control storm water discharges of Pollutant Discharge Elimination System: Administration, and the Office of concern through the NPDES program. Report to Congress (EPA, 1995a), pp. 1– Management and Budget. The panel Please refer to today’s preamble Section 21 to 1–22, and Appendix J (which considered representatives’ comments I.A. for a more detailed discussion of the provides a detailed summary of the previously submitted to EPA and impacts of urbanization on water comments received as they relate to the allowed representatives to provide quality. EPA is also strongly specific issues raised in the notice). additional comments. Based on encouraging partnerships and the In early 1993, the Rensselaerville comments and its own discussions, the watershed approach as the management Institute and EPA held public and Panel has provided findings regarding framework for efficiently, effectively, expert meetings to assist in developing the elements of an IRFA and specific and consistently protecting and and analyzing options for identifying recommendations regarding the restoring aquatic ecosystems and unregulated sources and possible proposed rule to EPA. The protecting public health. These controls. The report on the 1993 recommendations of the panel are regulations are intended to facilitate the meetings indicates that the two options discussed in Section VII.B., Regulatory implementation of a watershed most favored by the various groups Flexibility Act, SBREFA Panel Process. approach by providing the NPDES participating were: F. The FACA Committee Effort permitting authority and municipalities • A program in which States would the flexibility to address local select sources to be controlled in a To assist EPA in coordinating environmental problems by using manner that was consistent with criteria implementation of the urban municipal general permits. developed by EPA. The comprehensive wet weather water pollution control program under section 402(p)(6) would program, EPA established the Urban E. EPA Outreach Efforts provide States with flexibility to rely on Wet Weather Flows Advisory On September 9, 1992, EPA published either NPDES requirements or other Committee (hereinafter, ‘‘FACA a notice requesting information and frameworks to control targeted sources. Committee’’) under the Federal public comment on how to prepare • A tiered approach that would Advisory Committee Act (FACA). The regulations under section 402(p)(6) (see provide for EPA selection of high Office of Management and Budget 57 FR 41344). The notice identified priority sources for control by NPDES approved the charter for the FACA three sets of issues associated with permits and State selection of other Committee on March 10, 1995. The Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1545

FACA Committee assisted EPA in provide for ecosystem protection. EPA waters that without additional control of developing cost-effective solutions for believes there is considerable latitude in nonpoint sources of pollution could not controlling the environmental and CWA section 402(p)(6) in establishing reasonably be expected to attain or human health impacts of urban wet the scope of coverage (i.e., the maintain applicable water quality weather flows with a minimum of designation of sources to be regulated standards or the goals and requirements regulatory burden. The FACA under the NPDES program for storm of the CWA. States are also required to Committee provided and continues to water, as well as the comprehensive prepare and submit for EPA approval a provide a forum for identifying and program for regulating those sources). statewide Nonpoint Source Management addressing issues associated with water EPA has benefitted greatly from the Program for controlling nonpoint source quality impacts from these sources. variety of view points and the lively water pollution to navigable waters The FACA Committee has two exchange of ideas through the FACA within the State and improving the subcommittees: the Storm Water Phase Committees and subcommittees. EPA quality of such waters. State program II FACA Subcommittee (the designation has sought to build upon the issues submittals must identify specific best and comprehensive program raised in proposing the scope, method, management practices (BMPs) and requirements under CWA section and timing of the comprehensive measures that the State proposes to 402(p)(6) are often referred to as ‘‘Storm program to regulate storm water and to implement in the first 4 years after Water Phase II’’) and the Sanitary Sewer more effectively provide outreach and program submission to reduce pollutant Overflows (SSOs) FACA Subcommittee. technical assistance for these new loadings from identified nonpoint Consistent with the requirements of regulations. The Storm Water Phase II sources to levels required to achieve the FACA, the membership of both the FACA Subcommittee was also stated water quality objectives. FACA Committee and the instrumental in discussing lessons State programs funded under section subcommittees is balanced among EPA’s learned from implementation of the 319 can include both regulatory and various outside stakeholder interests, existing NPDES program for storm nonregulatory State and local including representatives from water. Records and iterative draft approaches. Section 319(b)(2)(B) municipalities, industrial and versions of today’s proposal have been specifies that a combination of commercial sectors, agriculture, available and continue to be available to ‘‘nonregulatory or regulatory programs environmental and public interest the public at the Office of Wastewater for enforcement, technical assistance, groups, States, Indian Tribes, and EPA. Management’s Home Page (see http:// financial assistance, education, training, Members have been selected and www.epa.gov/owm) or through the technology transfer, and demonstration appointed for the duration of the Point Source Information Provision projects’’ may be used, as necessary, to process. A Federal official or EPA Exchange System (PIPES) Home Page achieve implementation of the BMPs or employee serves as the Designated (see http://www.epa.gov/owmitnet/ measures identified in the section 319 Federal Officer and is present at all pipes/pipes.htm). submittals. meetings. All FACA Committee and The FACA Committee has provided Although most States have generally subcommittee meetings are open to the the Storm Water Phase II FACA emphasized the use of voluntary public and announced in advance in the Subcommittee with several approaches in their section 319 Federal Register. recommendations for improving the programs, some States and local The Storm Water Phase II FACA existing NPDES program for storm governments have implemented Subcommittee met twelve times water. Some of these recommendations regulations and policies to control between September 1995 and October are reflected as part of today’s proposal. pollution from urban runoff. States such 1997. The 32 subcommittee members The FACA Committee provided as Delaware and Florida, as well as local discussed the regulatory framework that recommendations, for example, for the jurisdictions such as the Lower serves as the basis for today’s proposed proposal regarding a ‘‘no exposure’’ Colorado River Authority, are pursuing rule at these meetings as well as during incentive for facilities with storm water storm water management goals through numerous conference calls. EPA discharges ‘‘associated with industrial numerical treatment standards for new provided subcommittee members with activity.’’ EPA’s proposal would apply development. Many States and local four successive drafts of the proposed this recommendation to the designation governments have enforceable erosion rule and preamble, outlines of the rule, of unregulated sources under section and sediment control regulations. documents identifying changes made to On a broader scale, nonpoint source 402(p)(6) as well. The FACA Committee each draft, and summaries of the written pollution is being addressed at the also recommended that EPA clarify and comments received on each draft, watershed level by such programs as define the standards applicable to including how the comments had been those being implemented by the State of NPDES permit controls for municipal addressed. EPA received extensive Wisconsin, the Puget Sound Water separate storm sewer systems, written comments from FACA members Quality Authority, and the States that specifically the standards that permits on a number of occasions, together with are parties to the Great Lakes Water require for controls to reduce the extensive oral feedback at a number of Quality Agreement. A number of discharge of pollutants ‘‘to the meetings and conference calls. Although individual States and local communities maximum extent practicable’’ (MEP). the Storm Water Phase II FACA have adopted legislation or regulations Subcommittee has not reached G. Related Nonpoint Source Programs that limit development or require consensus on the details of today’s special management practices in areas 1. Section 319 of the Clean Water Act proposal, they have provided EPA with surrounding water resources of special significant input and insights, which In 1987, section 319 was added to the concern, such as Maryland’s Critical EPA has tried to balance and address. Clean Water Act to provide a framework Areas Act. Today’s proposed regulations respond for funding State and local efforts to to President Clinton’s direction on address pollutant sources not addressed 2. Section 6217 of the Coastal Zone Act regulatory reform. EPA sought to by the NPDES program (i.e., nonpoint Reauthorization Amendments develop a common sense regulatory sources). To obtain funding, States are Section 6217 of the Coastal Zone Act approach to allow EPA, States, and required to submit Nonpoint Source Reauthorization Amendments (CZARA) Tribes to ‘‘manage for results’’ and Assessment Reports identifying State of 1990 provides that States with 1546 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules approved coastal zone management Management Measure, which is individual). The guidance also clarifies programs must develop and submit applicable to construction in urban that regulatory and nonregulatory coastal nonpoint pollution control areas, requires (1) that by design or mechanisms may be used to meet the programs to EPA and the National performance the average annual total requirement for enforceable policies and Oceanic and Atmospheric suspended solid loadings be reduced by mechanisms, provided that Administration (NOAA) for approval. 80 percent and (2) to the extent nonregulatory approaches are backed by Failure to submit an approvable practicable, that the pre-development enforceable State authority ensuring that program will result in a reduction of peak runoff rate and average volume be the management measures will be Federal grants under both the Coastal maintained. The management measures implemented. Backup authority can Zone Management Act and section 319 approach was adopted to provide State include sunset provisions for incentive of the CWA. officials flexibility in selecting strategies programs. For example, a State may State coastal nonpoint pollution and management systems and practices provide additional incentives if too few control programs under CZARA must that are appropriate for regional or local owners or operators participate in a tax include enforceable policies and conditions, provided that equivalent or incentive program or develop mechanisms that ensure higher levels of pollutant control are mandatory requirements to achieve the implementation of the management achieved. necessary implementation of measures throughout the coastal Storm water discharges regulated management measures. management area. Section 6217(g)(5) under the existing NPDES program, defines management measures as such as discharges from municipal H. Watershed-based Approach for Water ‘‘economically achievable measures for separate storm sewers serving a Quality Programs the control of the addition of pollutants population of 100,000 or more and EPA is promoting an integrated from existing and new categories and construction activities that disturb 5 or watershed approach for storm water and classes of nonpoint sources of pollution, more acres, do not need to be addressed other discharges that focuses on which reflect the greatest degree of in Coastal Nonpoint Pollution Control coordinated public and private sector pollutant reduction achievable through Programs. However, potential new efforts to address the highest priority the application of the best available sources, such as urban development water quality problems within nonpoint pollution control practices, adjacent to or surrounding municipal hydrologically defined geographic areas. technologies, processes, siting criteria, systems serving a population of 100,000 The watershed approach is a operating methods, or other or more, smaller urbanized areas, and decisionmaking process that reflects a alternatives.’’ Congress mandated a construction sites that disturb less than common strategy for information technology-based approach based on 5 acres, that are identified in collection and analysis and a common technical and economic achievability management measures under section understanding of the roles, priorities, under the rationale that neither States 6217 guidance need to be addressed in and responsibilities of all stakeholders nor EPA have the money, time, or other Coastal Nonpoint Pollution Control within a watershed. Implementation of resources to create and expeditiously Programs until such discharges are the watershed approach is critical for implement a program that depends on issued an NPDES permit. EPA and the improvement of water quality in the establishing cause and effect linkages NOAA have worked and continue to United States, and the approach is an between particular land use activities work together in their activities to essential priority for EPA’s water and specific water quality problems. If ensure that authorities between NPDES programs. EPA, therefore, is this technology-based approach fails to and CZARA do not overlap. reevaluating its programs, including the achieve and maintain applicable water EPA and NOAA published Coastal NPDES, ground water, drinking water, quality standards and to protect Nonpoint Pollution Control Program: and nonpoint source programs, to designated uses, CZARA 6217(b)(3) Program Development and Approval determine how they can be more requires additional management Guidance (1993), which addresses such effectively incorporated into the measures. issues as the basis and process for EPA/ watershed approach. EPA issued Guidance Specifying NOAA approval of State Coastal EPA intends that a central role be Management Measures for Sources of Nonpoint Pollution Control Programs, given to watershed planning and Nonpoint Pollution in Coastal Waters how EPA and NOAA expect State analysis by permitting authorities under 6217(g) in January 1993. The programs to implement management implementing storm water programs guidance identifies management measures in conformity with EPA under today’s proposed rule. While measures for five major categories of guidance, and procedures for reviewing States are not required to use a nonpoint source pollution: agriculture, and modifying State coastal boundaries watershed approach, EPA believes that forestry, urban, marinas and recreational to meet program requirements. The this approach would significantly boating, and hydromodification. The document clarifies that States generally improve implementation of today’s management measures reflect the must implement management measures proposed rule. As discussed in Section greatest degree of pollutant reduction for each source category identified in II.A., Overview, EPA designed today’s that is economically achievable for each the EPA guidance developed under proposed rule to facilitate watershed of the listed sources. These management section 6217(g). The document also sets planning and analysis, particularly in measures provide reference standards quantitative performance standards for the area of designating those storm for the States to use in developing or some measures. Coastal Nonpoint water sources to be covered under the refining their coastal nonpoint Pollution Control Programs are not program or giving regulatory relief to programs. In general, the management required to address sources that are storm water discharges already measures were written to describe clearly regulated under the NPDES designated, but also in determining and systems designed to reduce the program as point source discharges. implementing the requirements for the generation of pollutants. A few Specifically, such programs would not owners and operators of small management measures, however, need to address small municipal municipal separate storm sewer contain quantitative standards that separate storm sewer systems and systems. EPA expects that the NPDES specify pollutant loading reductions. construction sites covered under NPDES permitting authority would work with For example, the New Development storm water permits (both general and State agencies who have jurisdiction Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1547 over nonpoint sources and other areas and decisionmaking using a watershed that the new model needs to be within the watershed not covered under management approach to achieve more developed in an evolutionary fashion. the NPDES program in the development efficient and better problem solving. Substantial involvement of dischargers, of a comprehensive watershed plan. The Agency will continue to encourage users, and the general public will be EPA’s overall support of using the use of the watershed approach essential. It will require unprecedented watershed-based alternatives is through activities that include tailoring cooperation among many state and local described in greater detail in EPA’s the EPA program to support this entities, among state and federal Watershed Approach Framework (June direction; publishing case studies for agencies, and between states in the case 1996; http:/www.epa.gov/OWOW/ States to use as examples; creating a of watersheds crossing state lines. watershed/framework.html#6b) and tools directory; undertaking other Protection efforts should be coherent NPDES Watershed Strategy (U.S. outreach efforts, such as a quarterly and coordinated to make the most Environmental Protection Agency. newsletter (Watershed Events); efficient use of scarce resources and March 1994. Watershed Protection— including watershed activities on the minimize inconsistency among federal, NPDES Watershed Strategy. EPA Internet Home Page; training for state, and local programs or agencies. Washington, D.C.). The NPDES permit writers and the regulated The FACA Committee is developing a Watershed Strategy discusses community; and sponsoring recommended framework for integrating integration of NPDES program functions conferences, such as ‘‘Watershed 96.’’ urban wet weather discharges, including into a broader watershed protection State representatives of the Storm storm water discharges, into the approach and highlights areas for Water Phase II FACA Subcommittee watershed approach that reflects the key coordination with stakeholders to supported watershed-based principles outlined in EPA’s Watershed promote implementation of the implementation strategies and controls Approach Framework and NPDES approach. The NPDES Watershed and noted the following: Watershed Strategy. The committee’s Strategy is based on the following (T)he future demands a new model for recommendations are contained in a principles: managing water resources, based on draft policy entitled, A Watershed • Watershed protection approaches well-defined geographic units such as Alternative. This framework would may vary in terms of specific elements, basins or watersheds, that recognizes all provide that all regulated discharges timing, and resources, but all should the interconnections within the meet minimum requirements regardless share a common emphasis and watershed that define the hydrologic of their geographic location. Based on a insistence on integrated actions, specific cycle in that area, including surface and review and assessment of watershed action items, and measurable groundwaters as well as wetlands. The conditions and a determination that environmental and programmatic management of any watershed should water quality objectives are not being milestones. reflect all of the things that make it met in a particular watershed, • Related activities within a basin or unique, including specific precipitation watershed stakeholders would be able to watershed must be coordinated to patterns, topography, soil and geological choose to collectively pursue a achieve the greatest environmental characteristics, and land use. watershed approach to address benefit and most effective level of A systems management approach identified water quality problems. A key stakeholder involvement. would involve the development and element of this watershed alternative is • Actions relating to restoration and operation of a comprehensive water the development of a comprehensive protection of surface water, ground resource management program—though watershed plan that describes (1) who water, and habitat within a basin should ultimately it need not be limited to will coordinate watershed planning and be based upon an integrated decision- water resources—within the specific implementation, (2) the geographic area making process, a common information geographic area encompassing the basin being covered by the watershed base, and a common understanding of or watershed. Components of such a approach, (3) the watershed the roles, priorities, and responsibilities comprehensive program would include stakeholders participating in the of all stakeholders within a basin. water supply, water quality, water planning and implementation effort, (4) • Staff and financial resources are conservation, flood protection, land use, assessments of aquatic resources and limited and must be allocated to address and protection of fish and wildlife existing or potential water quality environmental priorities as effectively resources. This can often be done problems, (5) the coordinated watershed and efficiently as possible. effectively through comprehensive management activities that will be • Program requirements that interfere watershed management and planning. implemented, (6) the financial plan and or conflict with environmental priorities As our government policies transition schedule for completing the coordinated should be identified and revised to the to a systems-based, comprehensive management activities, and (7) a extent possible. approach to managing water resources, mechanism for accountability. Once this • Accurate information and high we must introduce increased flexibility plan were approved by the applicable quality data are necessary for decision- and latitude into current programs so regulatory authority(ies), relevant making and should be collected on an that cross-categorical management of provisions of the watershed plan would incremental basis; interim decisions resources can flourish. Water resource be incorporated into relevant regulatory should be made based on available data management policies should also and nonregulatory mechanisms and to prevent further degradation and recognize the significant regional progress in implementing the watershed promote restoration of natural resources. variance in the water resource. plan would be evaluated periodically. The watershed approach would be Management policies must be tailored to The watershed alternative has most successful if all stakeholders are local hydrologic and ecological numerous inherent incentives, involved. In addition, within a conditions. Any national policy should including greater opportunities to geographic management unit acknowledge unique regional and state improve water quality and (watershed/basin), a cycle of activities characteristics and provide a framework environmental conditions, more and a schedule for implementation must for development strategies consistent equitable allocation of resources, be established. with the national policy. enhanced program efficiency and lower EPA recognizes that many States are The States recognize that there are costs, improved coordination among coordinating their authorities, programs, significant institutional obstacles, and programs, an improved basis for 1548 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules management decisions, an emphasis on flexibility will generally ensure objectives through flexible innovations local decisionmaking, greater watershed protection while allowing within the framework of the NPDES consistency and responsiveness, permitting authorities flexibility to program. Unlike the storm water increased opportunities to use market- tailor program implementation to the regulations EPA promulgated in 1995, based incentives, and improved public needs of a particular watershed and its EPA no longer proposes to designate all relations. stakeholders. storm water discharges for nationwide EPA’s key principals are also reflected II. Description of Proposed Program coverage under the NPDES program for in today’s proposed rule. First, the storm water. The proposed framework Agency has structured the designation A. Overview for today’s proposed rule is one that of additional sources by the permitting would balance both nationwide authority to facilitate the consideration 1. Objectives EPA Seeks to Achieve in Today’s Proposal automatic designation and locally based of watershed impacts. The Agency also designation. Nationwide designation highly recommends that municipal EPA seeks to achieve several would apply to those classes or storm water discharges that would be objectives in today’s proposed rule. categories of storm water discharges that designated under this proposal be Under CWA section 402(p)(6), EPA is EPA believes present a high likelihood covered under general permits issued on required to provide a comprehensive of having adverse water quality impacts, a watershed-wide basis. Such permits storm water program that designates and regardless of location. EPA is proposing could also be written to address other controls additional sources of storm to designate the following sources on a sources in the watershed as well. Where water discharges to protect water nationwide basis: storm water a comprehensive watershed plan has quality. In addition, EPA is required to discharges from small municipal been developed, the Agency believes the address discharges of storm water from separate storm sewer systems located in components of that plan should be the activities exempted under the 1990 urbanized areas and construction reflected in all permits issued to the storm water regulations that were activities that result in land disturbance parties addressed by the watershed remanded by the Ninth Circuit Court of equal to or greater than 1 acre. As noted plan. Appeals in NRDC v. EPA (9th Circuit, under Section I.A.1, Studies and Some stakeholders have raised 1992)—construction activities Assessments of Storm Water Runoff, concerns that the Agency is failing to disturbing less than 5 acres and so- these two sources can cause significant consider watershed priorities in called ‘‘light’’ industrial activities not water quality impacts. Additional determining which sources will be exposed to storm water (see discussion sources would not be covered on a designated and in the requirements to of ‘‘no exposure’’ below). EPA is also nationwide basis either because EPA be imposed on such sources under seeking to address the problem of so- currently lacks information indicating a today’s proposal. The Agency disagrees. called ‘‘donut holes’’ created by the consistent potential for adverse water The Agency has limited its proposed existing NPDES storm water program. quality impact or because of EPA’s designation to those sources generally Donut holes are municipal separate belief that the likelihood of adverse believed to be of significant concern to storm sewer systems located within the impacts on water quality is low, with water quality. While encouraging urbanized areas that include systems some exceptions on a more local basis. designation of additional sources based covered by the existing NPDES storm Additional individual sources or on considerations of water quality, water program, but are not currently categories of storm water discharges including considerations made on a addressed by the storm water program could, however, be covered under the watershed basis, the Agency also because of the particular drafting of the program through a local, watershed- proposes to allow a waiver of otherwise existing regulations. In other words, based designation process. Permitting applicable requirements for some donut holes are gaps in the existing authorities may designate additional sources (construction sites under 5 acres NPDES storm water program’s and small municipal separate storm regulatory scheme. EPA also is trying to small municipal separate storm sewer sewer systems serving less than 1,000 facilitate and promote watershed systems when they develop designation people) where the NPDES permitting planning as a framework for criteria and apply these criteria to small authority participates in implementing a implementing water quality programs municipal separate storm sewer systems watershed plan and water quality is not where possible. located outside of an urbanized area, in impaired. Further, the Agency proposes Although the proposed program can particular those with a population of flexible requirements for permittees in be structured in various ways to regulate 10,000 or more and a population density allowing consideration of BMPs tailored the remaining unregulated sources of of at least 1,000. Exhibit 1 illustrates the to the needs of the watershed. The storm water to protect water quality, framework for today’s proposal. Agency believes that this sort of EPA believes it can best achieve its BILLING CODE 6560±55±P Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1549

BILLING CODE 6560±55±C 1550 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

The framework for the proposal storm water under the NPDES State regulation in a manner that is provides a significant degree of permitting program for a variety of ‘‘more stringent’’ than Federal flexibility. The provisions for reasons, primarily programmatic, but regulation. While the CWA explicitly nationwide designation of construction also legal. The primary reason for preserves the authority for States to and small municipal separate storm regulating storm water under the NPDES enact ‘‘more stringent’’ regulations to sewer systems in urbanized areas allow program is for simplicity and control discharges, the Agency would be for a waiver of applicable requirements predictability. EPA envisions a concerned that providing maximum based on appropriate water quality ‘‘seamless’’ program, particularly for flexibility for States to establish ‘‘non- conditions. The proposal would allow a regulating storm water discharges from NPDES’’ programs would leave permitting authority to waive otherwise municipal separate storm sewer regulatory authorities in many States in applicable requirements for a regulated systems, regardless of the relative size of a quandary to determine whether or not small municipal separate storm sewer the source. Forty-three jurisdictions programs they would design are more or system if the jurisdiction served by the (States and territories) administer the less stringent than a Federal program. system includes a population of less NPDES permit program, providing an The NPDES program provides a useful than 1,000 persons and meets additional opportunity for expeditious and recognized standard in these water quality-based conditions. Water implementation of a comprehensive instances. quality-based conditions would be the program to regulate storm water to As noted earlier, the NPDES program basis for a waiver of requirements of protect water quality. The NPDES has a proven record of reducing and construction activities between 1 and 5 program is a comparatively mature eliminating pollutant discharges. The acres, as well. For construction sources, regulatory program, and affected NPDES program also provides the rule would provide significant stakeholders are familiar with, if not mechanisms to assure attainment and flexibility for waiving otherwise accustomed to, how it operates. maintenance of water quality standards. applicable regulatory requirements Regulations under the NPDES program Given that regulations under section where a permitting authority are not enforceable against an affected 402(p)(6) are to regulate ‘‘to protect determines, based on water quality and entity until the effective date of a water quality,’’ the NPDES program watershed considerations, that storm permit, thus providing an opportunity provides a natural fit. Notwithstanding water controls are not needed. Coverage to identify particularized concerns and the preceding, however, the Agency would extend to municipal and tailor permit conditions that are relevant recognizes the continuing imperative to construction sources outside the and meaningful on an individualized assure that environmental regulations nationwide designated classes or basis. The NPDES permitting authority accomplish statutory objectives in the categories based on watershed and case- periodically reviews the NPDES permits least burdensome and most cost- by-case assessments. For the municipal to ensure that applicable requirements effective fashion. As explained further program, today’s proposal would remain relevant and ensure adequate in this preamble, the form and provide broad discretion to NPDES protection of receiving waters; CWA substance of NPDES permits to address permitting authorities to develop and section 402(b)(1)(B) describes the 5-year the sources designated in today’s implement criteria for designating small permit term. In addition, NPDES proposal would provide greater municipal separate storm sewer systems permits are enforceable. Permittees, flexibility for the newly covered sources outside of urbanized areas. Other storm inspectors, and enforcement authorities than the existing ‘‘standard’’ NPDES permit. water discharges from unregulated understand the individualized permit Today’s proposal would establish industrial, commercial, and residential obligations and, over the years, judicial sources would not be covered unless a requirements for NPDES permitting precedents have established clear authorities, regulated small municipal permitting authority determines on a procedural standards for the case-by-case, or categorical, basis that separate storm sewer systems, enforcement of those obligations. The construction activities disturbing equal controls would be needed to protect NPDES program also provides clear water quality. EPA believes that the to or greater than 1 acre and less than rules for citizen participation, not only 5 acres of land, and other discharges flexibility provided in today’s proposed in permitting and compliance rule would facilitate watershed designated by the permitting authority monitoring, but also in enforcement. planning. based on local conditions. Legal considerations also affect the Today’s proposal includes some new 2. General Requirements for Regulated Agency’s proposal to regulate the requirements for NPDES permitting Entities Under Today’s Proposal remaining unregulated storm water authorities implementing the CWA Today’s proposal defines additional under the NPDES permitting program. section 402(p)(6) program. As noted classes and categories of storm water When Congress enacted the point source above, EPA is making a significant effort discharges for coverage under the storm water provisions of section 402(p) to build flexibility into the program. At NPDES program. Those dischargers in 1987, it also enacted programs for the same time, EPA is maintaining a proposed to be regulated by today’s control of nonpoint sources under level of national consistency, as proposed rule would be required to seek section 319. The statute appears to appropriate. Permitting authorities coverage under an NPDES permit. suggest, therefore, that EPA should would be required to generally ensure Furthermore, all NPDES-authorized control point sources under section that the minimum requirements States and Tribes would be required to 402(p) with different, ‘‘regulatory’’ proposed today would be addressed by implement these provisions and make programs than the programs for the regulated community (e.g., any necessary amendments to current controlling nonpoint sources under permitting authorities must ensure that State NPDES regulations to ensure section 319. While EPA fully anticipates permits issued to municipalities include consistency with today’s proposal. EPA that States will provide ‘‘reasonable the minimum control measures would remain the NPDES permitting assurances’’ for the control of nonpoint established under the program). authority for States and Tribes without sources in a timely and effective Permitting authorities would also have NPDES authorization. manner, such assurances are not yet the ability to make numerous decisions EPA proposes to regulate the fully developed in practice. Several about the program including who is remaining unregulated point sources of States have enacted laws that prescribe regulated under the program (e.g., case- Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1551 by-case designations and waivers), what disturbing less than 1 acre of land that requirements for medium and large the requirements are for regulated are designated by the permitting municipal separate storm sewer systems entities (e.g., waiving otherwise authority, would be required to under the existing storm water program. applicable provisions where certain implement requirements set forth in the As proposed, permit requirements for conditions are met and developing a list NPDES permit, which may reference the all regulated municipal separate storm of regionally appropriate, field-tested requirements of a qualifying local sewer systems (i.e., those under the BMPs that it believes to be cost- program, issued to cover such sites. existing program and those proposed effective), and what the allocation of The rule also proposes to address today) would require implementation of responsibilities is between regulated certain other sources regulated under BMPs. Furthermore, with regard to the entities. the existing program for storm water. development of permits to protect water The rule proposes to extend the For municipally owned industrial quality, EPA intends to apply the municipal storm water program to sources required to be regulated under August 1, 1996, Interim Permitting include the following: small municipal the existing NPDES storm water Approach for Water Quality-Based separate storm sewer systems within program but exempted from immediate Effluent Limitations in Storm Water urbanized areas (with the exception of compliance by the Intermodal Surface Permits (hereinafter, ‘‘Interim tribally-owned systems that serve less Transportation Act of 1991 (ISTEA), the Permitting Approach’’) (see Section than 1,000 persons and any other rule proposes to maintain the existing II.L.1. for further description) to all system waived from the requirements by deadline for seeking coverage under an municipal separate storm sewer systems the NPDES permitting authority), small NPDES permit (August 7, 2001) (EPA is covered by the existing and the municipal separate storm sewer systems requesting comment on the possibility proposed extension of the existing meeting the criteria (to be established by of covering such sources in a single NPDES storm water program. EPA the permitting authority) for storm water permit for the municipality requests comment on the designation, and any municipal separate as a whole. See section II.I.3. below.) appropriateness of applying this storm sewer system contributing The rule also proposes to provide relief approach to small municipal separate substantially to the storm water from NPDES storm water permitting storm sewer systems regulated under pollutant loadings of a regulated, requirements for industrial and other this rule. physically interconnected municipal sources that provide a written EPA is planning to apply similar separate storm sewer system. Small certification of ‘‘no exposure of permit requirements to construction municipal separate storm sewer systems industrial materials and activities to sites below 5 acres as are applied to include municipal, Tribal, State, and storm water.’’ those above 5 acres. A waiver provision Federal facilities and other systems applicable to certain circumstances is 3. Integration of Today’s Proposal With located in an urbanized area that fall proposed. In addition, today’s rule the Existing Storm Water Program within the definition of a municipal proposes to allow compliance with separate storm sewer system. These In developing today’s proposal, qualifying local, Tribal, or State erosion would include, for example, State members of both the FACA Committee and sediment controls to meet the departments of transportation, and the Storm Water Phase II FACA erosion and sediment control universities, and military bases. Subcommittee encouraged EPA to seek requirements of the general permits for Today’s proposal would require all opportunities to integrate, where construction both above and below 5 regulated small municipal separate possible, the proposed Phase II acres. storm sewer systems to develop and requirements with existing Phase I implement a storm water management requirements, thus facilitating a 4. General Permits program. Program components would ‘‘seamless,’’ unified storm water The proposal would recommend include, at a minimum, measures to program. EPA believes that this using general permits for all dischargers address requirements concerning public objective is met by using the NPDES that would be covered under today’s education and outreach, public framework. This framework is already proposal. The use of general permits involvement, illicit discharge detection applied to regulated sources under the instead of individual permits reduces and elimination, construction site runoff existing NPDES storm water program the administrative burden on permitting control, post-construction storm water and would be extended to those sources authorities, while also limiting the management in new development and that would be designated under today’s paperwork burden on regulated parties redevelopment, and pollution proposed rule. This approach would seeking permit coverage. Permitting prevention and good housekeeping of facilitate program consistency, public authorities may, of course, require municipal operations. These program access to information, and program individual permits in some cases to components would be implemented oversight. address specific concerns, including through NPDES permits. A municipality EPA believes that this proposal permit noncompliance. would be required to submit to the provides consistency in terms of While general permits are probably NPDES permitting authority, either in program coverage and requirements for most appropriately issued on a its NOI or individual permit existing and newly proposed sources. watershed-wide basis for all storm water application, the BMPs to be For example, today’s proposal would permittees designated in this proposal, implemented and the measurable goals include most of the so-called donut the Agency strongly recommends that for each of the minimum control holes—municipal separate storm sewer general permits for municipal sources, measures listed above. systems within urbanized areas that in particular, be issued on a watershed The rule proposes to address all contain systems covered by the existing basis. Permit conditions contoured to a construction site activities involving NPDES storm water program, but are not specific watershed could reflect an clearing, grading and excavating land themselves addressed by the storm approved watershed plan, special equal to or greater than 1 acre and less water program. In addition, the provisions concerning program than 5 acres, unless requirements are minimum controls required in today’s implementation (e.g., allocation of otherwise waived by the NPDES proposal for regulated small municipal responsibilities among permittees), permitting authority. Such sites, separate storm sewer systems would be applicable water quality standards, including construction site activities very similar to a number of the permit including designated uses, and timing of 1552 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules implementation. Alternatively, the demonstration projects, grants, storm effectiveness of urban storm water Agency recommends that municipal water management-related programs, runoff BMPs nationwide. The long-term general permits be issued to cover the and compendiums of available goal of the project is to promote regulated small municipal separate documents, including guidances, related technical design improvements for storm sewer systems within urbanized directly or indirectly to the BMPs and to better match their selection areas. If the permitting authority issues comprehensive NPDES storm water and design to the local storm water a State-wide general permit, the program. Based on this effort, EPA problems being addressed. The project permitting authority may include would develop a tool box containing team is collecting and evaluating separate conditions tailored to fact sheets and guidance documents existing BMP performance data, individual watersheds or urbanized pertaining to the overall program and developing a BMP evaluation protocol, areas. rule requirements (e.g., guidance on and designing and creating a database. As discussed in Section I, today’s municipal and construction programs, Eventually the database will include the proposed rule would provide an and permitting authority guidance on nationwide collection of information on opportunity for regulated small designation and waiver criteria); models the characteristics of structural and non- municipal separate storm sewer systems of current programs aimed at assisting structural BMPs, data collection efforts to become co-permittees with municipal States, Tribes, municipalities, and (e.g., sampling and flow gauging separate storm sewer systems covered others in establishing programs; a equipment), climatological under existing individual permits. EPA comprehensive list of reference characteristics, watershed intends to consult with the Storm Water documents organized according to characteristics, hydrologic data, and Phase II FACA Subcommittee in subject area (e.g., illicit discharges, constituent data. The database will developing its general permits for the watersheds, water quality standards continue to grow as new BMP data proposed program. The Agency would attainment, funding sources, and similar become available. The database software recommend that State NPDES types of references); educational will be distributed by CD–ROM and will permitting authorities use the EPA materials; technical research data; and be accessible through the Internet. general permit as a guide in writing demonstration project results. The State-issued permits for newly regulated information collected by EPA will not EPA and ASCE invite BMP designers, storm water sources. Furthermore, only provide the background for tool owners and operators to participate in within the context of this rule, EPA box materials, but may also be included the database development effort. To intends to use the August 1, 1996, in, and made available through, an make this effort successful, a large Interim Permitting Approach (see information clearinghouse. Due to cost database is essential. Interested persons Section II.L.1. for further description) concerns, EPA is still considering are encouraged to submit their BMP for sources regulated under the NPDES whether an information clearinghouse performance evaluation data and storm water program. will be part of the tool box. EPA also associated BMP watershed characteristics for potential entry into 5. Tool Box intends to provide training workshops at the regional level with the the database. In addition, researchers During the FACA process, many expectation that the EPA regional offices planning to conduct BMP performance Storm Water Phase II FACA then will assist States, Tribes, and evaluations in the future are requested Subcommittee representatives expressed municipalities with understanding the to compile and collect BMP reporting an interest in having EPA develop a storm water program and will ensure information according to a format being ‘‘tool box’’ to assist States, Tribes, that the regulated entities are aware of developed by ASCE. For more municipalities, and other parties the availability of the tool box materials. information, please contact Eric involved in the Phase II program. EPA EPA has many funding mechanisms Strassler, EPA Engineering and Analysis made a commitment to work with Storm currently available to support activities Division, at 202–260–7150, e-mail: Water Phase II FACA Subcommittee related to storm water. These [email protected]. representatives in developing such a mechanisms will be included in the tool EPA intends to promote research tool box, with the expectation that a tool box. Many activities funded under box would facilitate implementation of consistent with the Risk Management grants and loan programs include Research Plan for Wet Weather Flows the storm water program in an effective programs in the nonpoint source area, and cost-efficient manner. EPA is prepared by EPA’s Office of Research storm water demonstration projects, and and Development. This plan supports committed to having a preliminary wastewater construction projects. EPA the priority research questions and working tool box by the time the has already provided funding for needs of the Office of Water. Finalized proposed rule is finalized in 1999; EPA numerous research efforts in these areas, in November 1996, the plan will be intends to have the tool box fully including a database of BMP updated annually. It includes strategic operational at the time of the general effectiveness studies, an assessment of research directions and identifies active permit. EPA also intends to update the technologies for storm water and proposed projects for supporting tool box as resources and data become management, a study of the each research area. available. The tool box would most effectiveness of storm water BMPs for likely include the following six main controlling the impacts of watershed 6. Deadlines Established in Today’s components: fact sheets, guidances, an imperviousness, protocols for wet Proposal information clearinghouse, training and weather monitoring, development of a outreach efforts, technical research, and dynamic model for wet weather flows, Exhibit 2 outlines the various support for demonstration projects. and numerous outreach projects. deadlines proposed in today’s rule. EPA In an attempt to avoid duplication, EPA has entered into a cooperative believes that the dates proposed allow the Agency has undertaken an effort to agreement with the Urban Water sufficient time for completion of both identify and coordinate sources of Resources Research Council of the the NPDES permitting authority’s and information that relate to the storm American Society of Civil Engineers the permittee’s program responsibilities. water program from both inside and (ASCE) to develop a scientifically-based EPA requests comment on the outside the Agency. Such information approach and management tool for the appropriateness of the proposed may include research and information needed to evaluate the deadline dates. Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1553

EXHIBIT 2.ÐTODAY'S PROPOSED RULE DEADLINES

Activity Deadline date

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

B. Readable Regulations believes it has the authority to develop systems within an urbanized area in Today, EPA is proposing new the section 402(p)(6) storm water order to solve the problem of donut regulations in a ‘‘readable regulation’’ program either as part of the existing holes. The existence of donut holes format. This reader-friendly, plain NPDES permit program or as a stand creates an equity problem because some English approach is a departure from alone non-NPDES program (i.e., through similar discharges remain unregulated traditional regulatory language and an ‘‘authorization by rule’’ approach). even though they cause the same water should enhance the rule’s readability. Under either approach, the Agency quality impacts. EPA believes that These plain English regulations use would interpret section 402(p)(6) as covering the unregulated discharges in questions and answers, ‘‘you’’ to directing the Agency to publish these areas through the NPDES identify the person who must comply, regulations that ‘‘regulate’’ the framework would provide the best and ‘‘must’’ rather than ‘‘shall.’’ The remaining unregulated sources, method, given that this approach would legal implications of plain English are specifically to establish requirements cover urbanized areas under one single the same. The word ‘‘must’’ indicates a that are federally enforceable under the comprehensive and seamless regulatory requirement. Words like ‘‘should,’’ CWA. At the same time that Congress program for storm water. For example, ‘‘could,’’ or ‘‘encourage’’ indicate a enacted section 402(p), it enacted CWA today’s proposal would allow for a recommendation or guidance. This new section 319. Section 319(b)(2)(B) refers municipality to join as a co-permittee format, which minimizes the layers of to ‘‘nonregulatory or regulatory with a regulated municipality, subparagraphs, should also allow the programs for enforcement.’’ The Agency referencing a common storm water reader to easily locate specific interprets this distinction as relevant for management program (see Section provisions of the regulation. Language the purposes of interpreting the term II.H.3, Municipal Permit Requirements, within parentheses in today’s proposal ‘‘regulate’’ in section 402(p)(6). The for further discussion.) Similarly, is intended as guidance. EPA requests Agency has considered many options construction activities under the comment on this new format and for the framework, as discussed in this existing storm water program and under whether it provides sufficient section. The Agency also notes that, today’s proposed program covering 1 to distinction between legal obligations although input from the Storm Water 5 acres of disturbed land would be and EPA recommendations. Phase II FACA Subcommittee was subject to essentially the same program Some sections of today’s proposed instrumental in the development of requirements. The NPDES program regulation are presented in the today’s proposal, the subcommittee was approach, as proposed, is highly flexible traditional language and format because unable to reach consensus on the in terms of a number of key provisions these sections are amending or changing structural framework for that would facilitate and promote existing regulations. The readable implementation. watershed planning and sensitivity to regulation format was not used in these 1. Today’s Approach—The NPDES local conditions. EPA made an intensive existing provisions in an attempt to Program Approach effort to include flexibility in today’s avoid any possible confusion or proposed rule, and examples abound disruption of the flow of the regulations. As discussed in Section II.A, throughout the proposal. The following Overview, EPA sought to achieve are some of the more significant C. Program Framework certain goals in today’s approach. EPA examples of the flexible NPDES EPA interprets CWA section 402(p)(6) believes the best approach to meet these approach being proposed: using NPDES to provide broad discretion in goals is through the use of the NPDES general permits for coverage of regulated establishing the structural framework program. One of the specific goals that sources on a watershed basis; for the designation of additional would be addressed through use of incorporating qualifying local programs sources, as well as the program to NPDES permits is equitable treatment of in NPDES permit requirements; regulate those sources. The Agency all municipal separate storm sewer selecting regionally appropriate BMPs 1554 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules for municipalities; allowing minimum State to minimize unnecessary under the Federal program. control measures to be implemented by duplication. Another example from Additionally, EPA would periodically another governmental entity; and today’s proposal would be the evaluate the management plans and allowing permitting authorities to waive incorporation by reference of existing could require the State or Tribe to otherwise applicable requirements for programs with locally developed implement the Federal section 402(p)(6) sources pursuant to watershed/TMDL standards for pollutant controls into program if the plan became inadequate. assessments. Furthermore, EPA sought NPDES permits. This would be to the The State caucus representatives of the to accommodate State and Tribes benefit of permittees who might Storm Water Phase II FACA seeking to coordinate the storm water otherwise be subject to duplicative Subcommittee amplified this option in program with other State and Tribal requirements by different levels of a discussion intended for inclusion in programs, including those that focus on government (local, State, and Federal.) this preamble and for public comment watershed-based nonpoint source thereon (see the next section entitled, 2. Alternatives Considered regulation. State Alternative Program). EPA believes that a flexible approach EPA considered a variety of EPA believes the alternative must be in balance with the need for the alternative approaches to structure the approaches could provide many of the program to be enforceable and to hold proposed extension of the existing storm same benefits discussed previously the regulated community accountable water program. Under the first option, relating to today’s proposal. for fulfilling program requirements. As EPA would develop a completely new Specifically, EPA believes that the such, a significant benefit of using an non-NPDES regulatory system. Such an options could be designed to provide NPDES approach is that permits would approach could include authorization of adequate integration of the storm water be enforceable under the CWA. Another discharges ‘‘by rule’’ or some other type programs, enforceability, accountability, concern for EPA and several Storm of permit program in which permits public participation, and coverage of Water Phase II FACA Subcommittee were not developed in the same way as sources (e.g., facilities owned or members was that the program ensures NPDES permits. Under a second option, operated by Federal, State, or Tribal citizen participation. Currently, the EPA would establish only a ‘‘baseline’’ governments). The alternative NPDES approach ensures citizen scope of applicability for State and approaches might also provide participation throughout the permit Tribal programs; the only nationally opportunities to streamline the control issuance process, as well as in applicable EPA action would be the mechanisms that the Agency has not yet enforcement proceedings. designation of sources. EPA would evaluated. Furthermore, the storm water In addition, the NPDES approach is allow States and Tribes to use existing management program proposal allows suitable to cover all the sources that water pollution control programs States and Tribes the maximum amount would be potentially regulated under (NPDES or otherwise) to regulate such of flexibility in tailoring the section CWA section 402(p)(6), including designated sources. To the extent 402(p)(6) program to address their facilities owned or operated by Federal, existing programs did not cover EPA’s specific environmental problems. State, or Tribal governments. baseline program, States and Tribes The Agency does have some concerns Incorporating the section 402(p)(6) would establish additional regulatory about the alternative proposals, program into the NPDES approach control mechanisms. A Storm Water however. The alternatives establish new capitalizes upon the existing Phase II FACA Subcommittee work systems, which could cause a great deal governmental infrastructure for group analyzed these approaches and of confusion. As explained previously, administration of the NPDES program. provided valuable feedback to the EPA is not yet aware of any such Moreover, much of the regulated Agency. A caucus of State program currently in existence for community already understands the representatives from the Storm Water regulation of storm water. None of the NPDES program and the way it works. Phase II FACA Subcommittee submitted alternatives would provide any level of Some stakeholders shared concerns a third option. Under their proposal, national consistency or predictability. that the NPDES approach was States and Tribes would have an option This may be a special concern for unnecessarily burdensome and costly. to develop an individual storm water industrial stakeholders operating in In response, EPA proposes management program. (As an alternative multiple States nationwide. The Agency modifications to and clarifications about under this option, States and Tribes has heard numerous concerns about the NPDES program. EPA shares some could choose to implement the program inconsistencies in requirements from of the stakeholder concerns; other developed by EPA.) The individual different jurisdictions. While today’s concerns are merely misperceptions. State or Tribal storm water management proposed approach does not totally EPA envisions that NPDES permitting program would use NPDES permits but address this issue, the Agency at least authorities would use general permits would also rely on enforceable non- attempts to establish a minimum for the majority of discharges designated permit mechanisms (e.g., if EPA program for ensuring a certain level of for regulation under the comprehensive promulgated a regulation that ‘‘deemed’’ consistency nationwide. program. General permits should help to requirements under such non-permit In addition, EPA believes it would be minimize any administrative burden on mechanisms to be ‘‘an effluent very difficult to determine whether a NPDES permitting authorities and limitation or other limitation under State or Tribe has developed an expedite permit coverage for CWA section 301’’). Because section 402 adequate individual program that dischargers. The Agency also proposes is referenced in section 301(a), non- provides the same level of substantive provisions that would recognize actions permit mechanisms developed by States control. The process of approving these by States and their political according to the comprehensive alternative programs to determine subdivisions in determining compliance program requirements of section whether they provide an equivalent or with permit requirements. For example, 402(p)(6) would also constitute effluent better level of control could take a great small municipalities could rely on limitations under section 301. Under the deal of time and further delay efforts by States or neighboring States’ proposal, EPA would have to controlling unregulated point source municipalities to satisfy permit review and approve these programs to discharges that are causing an adverse obligations. This flexibility would allow ensure that they provide for the same impact on water quality. Furthermore, if both the permittee/municipality and the water quality results as those prescribed a non-NPDES option was included in Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1555 the final rule, EPA would need to have requested that EPA invite the administrative or planning process determine which, if any, programmatic comment on an alternative program itself. States propose more opportunity requirements of 40 CFR parts 122 et seq. framework to be available to States in for citizen involvement in the initial should be applicable to State non- addition to the NPDES State storm water development and implementation of the NPDES programs. EPA believes it would management program requirements in overall alternative program than is need to address some of the State today’s proposed rule. currently envisioned by today’s NPDES program requirements from existing Today’s proposal would rely on the proposal. In comparison with today’s regulations including conflicts of NPDES permit program to establish a NPDES proposal, the alternative might interest among governing bodies who comprehensive program to regulate allow for less opportunity for citizen approve permits (consistent with CWA designated sources. EPA believes, involvement in the details of section 304(i)(D)), requirements for however, that section 402(p)(6) is requirements imposed on dischargers enforcement authority and penalty subject to an interpretation that would (than is afforded under NPDES permits). provisions, confidentiality of permit allow for a comprehensive program to ii. State-Proposed Program Criteria. In application information, EPA review of regulate designated sources through a seeking proposal of an alternative and objection to State permits, public regulatory program other than the approach, State representatives on the notice and public hearings for permit NPDES permit program (e.g., through Storm Water Phase II FACA issuance, citizens appeal of final-issued authorization by rule). For a State to Subcommittee have suggested criteria permits, and citizen intervention in qualify for a non-NPDES approach, it for EPA approval of an alternative State enforcement proceedings. These would probably have to decide to take storm water management program. Such provisions are particularly important for such an approach from the start, a program would be required: ensuring adequate enforcement and however. (1) To demonstrate that it would result State representatives have suggested public participation, as well as integrity in equivalent or better protection of that a process be identified that would and public confidence in the program. water quality and designated uses lead to the development of an EPA seeks comment on how these (2) To provide assurances of alternative non-NPDES State storm issues could be addressed in a non- implementation, including: water management program under CWA NPDES program. a. Legal authorities of participating section 402(p)(6) for States wishing to The Agency is seeking comment on state and local agencies take a more comprehensive approach today’s proposal, as well as on the b. Resources to carry out than that of today’s proposal. Under the alternatives considered. Comment is implementation States’ proposal, States, Territories, and further sought on whether a viable c. Enforceable mechanisms for Tribes could elect either (1) to regulate approach would be for EPA to adopt a implementation measures, State alternative approach for part of the sources designated in today’s including backup to voluntary today’s proposed storm water program. proposal under the NPDES permit measures For example, were it to adopt a non- program according to the provisions of (3) To identify equivalent or better NPDES approach, EPA would need to today’s proposal (assuming the State, timeframes for implementation determine what parts of the State’s non- Territory, or Tribe is authorized to (4) To allow equivalent or better public NPDES program could be submitted for administer the NPDES program) or (2) to participation elements EPA approval. It would seem that it is develop an alternate State storm water (5) To provide for management of the more prudent to specify particular parts management program subject to public same types of facilities in an of a storm water program, rather than review and comment and Federal equivalent or better manner or the program in its entirety, as eligible approval. The two major features of the provide for management of for approval for a non-NPDES approach. alternative program are that it would be activities that would result in Thus, a State or Tribe could propose a fully integrated into a State equivalent or better protection non-NPDES framework for the comprehensive water quality (6) To include objectives, measures, construction component (1 or more and management program and it would monitoring, and corrective action less than 5 acres of disturbed land) of its include specific non-NPDES mechanisms adequate to assure that storm water program. Likewise, a State mechanisms for controlling storm water or Tribe could propose a non-NPDES discharges. States would also have the the program is being implemented framework for storm water runoff from option of employing some combination and is effective regulated small municipalities located of the above. Other substantive considerations would outside of urbanized areas. Furthermore, i. Alternative Overview. Similar to include, at a minimum, a description of another option could allow States or today’s NPDES proposal, States under the mechanism by which storm water Tribes to seek approvability for a non- the alternative proposal would need to sources are (or would be) regulated; a NPDES approach solely for sub-parts of specifically identify how urban storm description of the opportunities for the program, such as covering water management activities would be public participation, including in the construction sites between 3 and 5 acres coordinated with other water quality development of regulatory and under an NPDES program, while management activities, such as nonregulatory mechanisms and covering between 1 and 3 acres in a nonpoint source management and enforcement; and a statement about the non-NPDES program. In the municipal TMDL development. In addition, as legal authority of the State to administer program, a non-NPDES program could proposed, the State storm water such a program by an officer of the State be available for specific minimum management program would be who is competent to provide such a control measures. EPA would like developed with involvement of statement. comment on these options for program municipalities, industries, In utilizing these criteria, the approvability. environmental groups, and other alternative program submission would stakeholders, much like the current cover, to at least the same extent, a. State Alternative Non-NPDES NPDES process. Also, as with the sources and related pollutants of Program NPDES program, the alternative concern designated in today’s proposed State representatives on the Storm program would focus principally on rule (e.g., discharges from small Water Phase II FACA Subcommittee environmental results, rather than on municipal separate storm sewer systems 1556 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules and from construction sites disturbing (1) The State has not implemented its explained more fully in EPA’s April less than 5 acres, including opportunity program or has ceased implementation 1995 guidance, Policy Statement on for waiver provisions). For a State to of the program; Scope of Discharge Authorization and qualify for approval of an alternative (2) The State is implementing its Shield Associated with NPDES Permits approach, the State program would need program, but the program is not (U.S. Environmental Protection Agency. to cover additional wet weather sources effective in managing storm water from July 1, 1994 (revised April 11, 1995). not specifically designated in today’s the same sources intended in the Memo: From Robert Perciasepe proposed rule as well. In addition, NPDES alternative; (Assistant Administrator for Water), covered sources to be designated under (3) EPA has notified a State of Steven A. Herman (Assistant today’s proposal and other additional deficiencies in its program and the State Administrator for Enforcement), and sources identified by the State has not corrected them within 6 months, Jean C. Nelson (General Counsel) to alternative program would be expected or 2 years if statutory revisions are Regional Administrators, Regarding to attain water quality standards, necessary. (EPA is not required to ‘‘Policy Statement on Scope of including designated uses. One area of provide the State time to make statutory Discharge Authorization and Shield flexibility that EPA foresees as a revisions if the State legislature has Associated with NPDES Permits.’’), possibility under the alternative already removed the original necessary compliance with an NPDES permit State statutory program authority.) program relates to the minimum control constitutes compliance with the CWA EPA invites comment on the measures required in today’s NPDES (see CWA section 402(k)). Moreover, appropriateness of this alternative certain NPDES discharges qualify as proposal. Implementation of today’s proposal. Specifically, comments are proposed minimum control measures in ‘‘federally permitted releases’’ under sought on the proposed alternative section 101(10) of the Comprehensive the alternative approach would not be approval, review, and disapproval necessary as long as the alternative Environmental Response, Compensation processes as they relate to requirements and Liability Act, also known as program provided for control measures under 40 CFR Part 123. EPA invites that addressed the same impacts to the Superfund (see 42 U.S.C. 9601(10); 40 comment on the appropriateness of CFR 117.12). Additionally, permits same extent as today’s proposed these substantive criteria, including the generally require an application or a minimum control measures are appropriate level of specificity to ensure notice of intent to be covered. This intended to. consistent application while providing information exchange assures States with flexibility, as well as the iii. Proposed Procedure for Approval communication between the permitting need for other substantive criteria. This and Periodic Review. If the final rule authority and the regulated community. would include enforceability of such an were to allow States an option for an This communication is critical in alternative to ensure equivalency or alternative State storm water ensuring that the regulated community better protection of water quality as management program, States envision is aware of the requirements and the envisioned by the CWA and the need for the need for both a Federal approval permitting authority is aware of national consistency in point source procedure and periodic EPA review. potential impacts to water quality. The control requirements. EPA further States would need to invest time, NPDES permitting process includes the invites comment on whether State energy, and resources at the outset to public as a valuable stakeholder and processes for public participation would develop such alternative programs. ensures that the public is included and provide an adequate opportunity for More planning would be necessary for information is made publicly available. input from regulated sources, as well as such a submission than would Furthermore, NPDES permits are otherwise be expected under today’s from the public in general. In addition, the States have proposed enforceable under the CWA by citizens proposal. In addition, a State electing to and Federal, State, and Tribal develop an alternative storm water that an alternative program could utilize State efforts undertaken to comply with governments, thus ensuring adequate management program might be required protection against adverse impacts on to evaluate, revise, and update its water Part 130 regulations (40 CFR Part 130). Although EPA is not proposing to water quality. quality management program at fixed The Agency recognizes that using intervals. States envision that, EPA, in amend the Part 130 regulations, EPA invites comment on how the existing NPDES permits has some drawbacks. conducting such reviews, would seek Issuing individual NPDES permits can comments from the community on the Part 130 regulations could support an enforceable alternative State program. be burdensome on permitting performance of the statewide storm authorities and the regulated water management program. State For a more complete discussion of the Part 130 regulations, see Section II.L.2, community. NPDES permits are only representatives believe that this effective for 5 years. The time spent approach would provide the public Total Maximum Daily Loads, of today’s preamble. issuing permits could restrict resources within a State with much more to conduct public outreach, inspections, meaningful involvement at the program 3. Permits Versus Non-Permits and enforcement. Commenters have level than is normally achieved through As noted previously, EPA proposes noted that the application process is the issuance of individual or general that the extension of the existing storm costly and confusing. To address a permits. water program under section 402(p)(6) number of these problems, EPA iv. Proposed Procedure for be administered as part of the NPDES encourages using general permits for the Disapproval. State representatives have permitting program (including the majority of sources to be designated also suggested criteria for EPA use in exemption for discharges associated under this proposal. NPDES general the event that it becomes necessary to with industrial activity composed permits can cover a category of withdraw approval of a State storm entirely of storm water where there is dischargers within a defined geographic water management program and require ‘‘no exposure’’ to storm water). As such, area. Areas can be defined very broadly implementation of the federally the extension of the existing storm water to include political boundaries (e.g., prescribed NPDES program in today’s program would be implemented through county), watershed boundaries, or State proposed rule. They have proposed the NPDES permits. NPDES permits are or Tribal land. Furthermore, EPA is following criteria: advantageous in many ways. As working to streamline the permit Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1557 application/NOI process to reduce the would consist of the rule, tool box, and Agency anticipates that some of these burden on the regulated community. permits. EPA’s primary role would be to programs would provide funds to help EPA is seeking comment on today’s ensure timely development and develop and, in limited circumstances, proposed approach. implementation of all components. implement the section 402(p)(6) storm The Storm Water Phase II FACA Today’s proposal is a refinement of the water program. Because some Federal Subcommittee work group that first step in developing the program. funds are only available for limited considered the structural framework for EPA is fully committed to continuing to purposes, for example, nonpoint source the extension of the existing storm water work with involved stakeholders on control programs, and because section program under section 402(p)(6) also developing the tool box and issuing 402(p)(6) describes a program for considered the appropriate legal permits. As noted in today’s proposal, controlling point source discharges of mechanism for implementation. The EPA would be required to assess the storm water, EPA solicits comment on subcommittee discussed numerous municipal storm water program based suggestions on structuring the final rule options and considered including self- on (1) evaluations of data from the to maximize opportunities for Federal implementing rules or ‘‘permits-by- NPDES municipal storm water program, financial assistance. rule.’’ (2) research of water quality impacts on 4. Implement the Program for Non- A self-implementing rule would be a receiving waters from storm water, and NPDES Authorized States, Tribes, and regulation promulgated at the Federal, (3) research on BMP effectiveness. EPA Territories State, or Tribal level. The basic will attempt to seek adequate resources, principle would be that the rule would within annual budgetary constraints, to Since today’s proposed approach spell out the specific requirements for ensure that these evaluations, as well as utilizes the NPDES framework, EPA dischargers. The rule could impose the the necessary research, can be would be the permitting authority for exact same restrictions and conditions completed. (Section II.H, Municipal several States, Tribes, and Territories. as an NPDES permit, but generally Role, provides a more detailed As such, EPA would have the same would be effective until modified by discussion of this provision.) responsibilities as any other NPDES EPA, a State, or a Tribe. EPA considered permitting authority—issuing permits, addressing the storm water program 2. Encourage Use of a Watershed designating additional sources, and under section 402(p)(6) directly by rule Approach taking appropriate enforcement instead of through a permitting program. EPA is promoting an integrated actions—and would seek to tailor the This approach could reduce the burden approach that focuses on public and storm water program to the specific on the regulated community (e.g., by not private sector efforts to address the needs of the State, Tribe, or Territory. requiring permit applications). highest priority problems within EPA would also provide support and Although this approach would provide hydrologically defined geographic areas. oversight, including outreach, training, consistency across the nation, it would Today’s proposal offers flexibility for and technical assistance to the regulated not address site-specific problems very States and Tribes to use a watershed communities. See the discussions below well or foster coordination with approach and should facilitate related to the NPDES permitting authorized NPDES State programs. In watershed planning on the part of States authority’s responsibilities for today’s discussing this option, some and Tribes implementing the program. proposed rule provisions, and note that stakeholders raised enforcement issues Section I.H. discusses the watershed Section II.G. of today’s preamble and the ability of EPA, States, and approach in more depth. provides a separate discussion. Tribes to determine which discharges 3. Provide Financial Assistance 5. Oversee State Programs were subject to the program. Although EPA has several programs with self- Another important role for the Federal Under the NPDES program, EPA plays implementing requirements (e.g., the government would be to assist an oversight role for NPDES-approved sewage sludge program, Part 129 toxic financially in developing and States and Tribes. In this role, EPA and standards under the NPDES program, implementing the storm water program the States or Tribes work together to and categorical standards under the under section 402(p)(6). EPA has no implement, enforce, and improve the pretreatment program), the Agency does independent authority to establish a NPDES program. Part of this oversight not propose to take this approach under funding mechanism. Although Congress role includes working with States and section 402(p)(6). The Agency does, did not establish a fund to fully finance Tribes to modify their programs where however, seek comment on such an implementation of the proposed inadequacies exist. This role would be alternative. extension of the existing NPDES storm vitally important when States and water program under section 402(p)(6), Tribes make adjustments to develop, D. Federal Role numerous Federal financing programs implement, and enforce the new section Today’s proposal describes EPA’s (administered by EPA and other Federal 402(p)(6) proposed extension of the approach to develop the extension of agencies) could provide some financial existing NPDES storm water program. In the existing storm water program under assistance. These programs include the addition, States maintain a continuing CWA section 402(p)(6). As in all other CWA section 106 grant program, CWA planning process (CPP) under section Federal programs, the Federal section 104(b)(3) grant program, State 303(e) of the CWA, which EPA government plays an integral role in surface and ground water management periodically reviews to assess the developing, implementing, overseeing, programs under the Safe Drinking Water program’s achievements. and enforcing the program. This section Act, the environmental quality In its oversight role, EPA takes action describes EPA’s role in the revised incentives program, the conservation to address States and Tribes who have storm water program. reserve program, the wetlands reserve voluntarily sought NPDES authorization program, and the estuary management but are not fulfilling their obligations 1. Develop Overall Framework of the and Federal monitoring programs. Also, under the NPDES program. If an Program the Natural Resources Conservation NPDES-authorized State or Tribe failed As discussed previously in the Service (NRCS) has some grants to implement an adequate NPDES storm overview section, the storm water available to assist in projects related to water program, for example, EPA would program under CWA section 402(p)(6) erosion and sediment controls. The enter into extensive discussions to 1558 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules resolve outstanding issues. EPA has the municipal separate storm sewer system, development of water quality standards authority to withdraw the entire NPDES which specifically includes systems and TMDLs when authorized to do so. program (partial program withdrawal is operated by the Federal facilities. For 1. Develop the Program not allowed under the CWA) when Federally owned regulated small resolution cannot be reached. municipal separate storm sewer In developing the proposed extension EPA is also working with the States systems, the proposal would require of the NPDES existing storm water and Tribes to improve nonpoint source compliance with the application program under section 402(p)(6), States management programs and assessments deadlines that apply to regulated small and Tribes must evaluate whether to incorporate key program elements. municipal separate storm sewer systems revisions to their NPDES programs are Nonpoint source program elements can generally. EPA believes that all necessary. If so, modifications must be include protecting surface and ground Federally owned municipal separate made in accordance with § 123.62. water; establishing partnerships with storm sewer systems would serve Under § 123.62, States and Tribes must public and private partners; using a populations less than 100,000. We revise their NPDES programs within 1 balanced approach incorporating invite comment on the appropriateness year or 2 years if statutory changes are Statewide and watershed-abatement of of this assumption. necessary. EPA believes this time period existing impairments; preventing future Federal facilities could also be is appropriate for incorporating impairments; developing processes to included under the section addressing revisions to existing NPDES programs address both impaired and threatened storm water discharges associated with because the basic NPDES program waters; reviewing upgrades of all other activities, including construction. already addresses storm water program components, including In any case, discharges from these discharges from industrial and larger program revisions on a 5-year cycle; government-owned facilities would municipal sources. addressing Federal land management need to comply with all applicable EPA is considering modifying the 1 and activities inconsistent with State NPDES requirements and any additional year timeframe to 2 years or 3 years if programs; and managing State/Tribal water quality-related requirements statutory changes are required, where a nonpoint source management programs. imposed by a State, Tribal, or local State or Tribe has a fully developed and In addition, EPA has committed to help government. Failure to comply could approved watershed program (including address nonpoint source pollution result in enforcement actions. Federally enforceable nonpoint source controls) stemming from Federal lands and owned and operated facilities could act by the end of the first year. EPA activities. as models for municipal and private supports implementing the section In particular, EPA works with the sector facilities and implement or test 402(p)(6) proposed storm water program States and Tribes to strengthen their state-of-the-art management practices as part of a watershed approach (see nonpoint source pollution programs to and control measures. more detailed discussion in previous address agricultural sources through the section on watersheds) and believes it is CWA section 319 program. EPA is E. State Role appropriate to offer institutional working with other government Today’s proposal sets forth an NPDES incentives as encouragement. EPA is agencies, as well as with community approach for implementing the specifically seeking comment on this groups, to effect voluntary changes proposed extension of the existing storm issue. regarding watershed protection and water program under section 402(p)(6). A State or Tribal NPDES program reduced nonpoint source pollution. The NPDES program is a voluntary must meet the requirements of section Through the FACA process, the Agency federal program consistent with the 402(b) or conform to the guidelines would continue to work with States to principals of federalism. Because most issued under section 304(i)(2) of the ensure that the requirements of the States are approved to implement the CWA. Today’s proposal under § 123.25 proposed extension of the existing storm NPDES program, they will tailor their adds specific cross references to the water program under section 402(p)(6) storm water programs to address their section 402(p)(6) program components are consistent with elements of the water quality needs and objectives. to ensure that States and Tribes nonpoint source management program. Federally-recognized Tribes also have adequately address these. Furthermore, In addition, EPA and NOAA have the opportunity to administer the EPA is proposing § 123.35, which is published programmatic and technical NPDES program. Several Tribes are discussed more fully in Section II.G, guidance to address coastal nonpoint currently seeking NPDES authorization NPDES Permitting Authority’s Role for source pollution. Under the existing and, when approved, will also tailor the the CWA section 402(p)(6) Municipal coastal protection program, EPA and proposed extension of the existing Program. NOAA review State programs and NPDES storm water program to address In tailoring the proposed extension of provide technical and programmatic their local needs and objectives. While the existing NPDES storm water assistance to help the coastal States EPA is proposing the basic framework program to accommodate their needs, upgrade their Coastal Zone Management for the section 402(p)(6) program, States States and Tribes should coordinate and Programs. The Agency is committed to and Tribes have an important role in utilize the data collected under several assisting States in identifying sources of fine-tuning the program to address the programs, including water quality funding to develop and implement State water quality issues within their management programs, TMDL coastal nonpoint programs. jurisdictions. The basic framework programs, and water quality monitoring would allow for adjustments based on programs. All States and Tribes have 6. Comply With Applicable factors that vary geographically, water quality standards that consist of Requirements as a Discharger including climate patterns and terrain. designated uses, criteria, an Today’s proposal covers federally Where States or Tribes do not have antidegradation policy, and other owned or operated facilities in a variety NPDES authority, they are not required implementation policies and of ways. These facilities are generally to implement the storm water program, procedures. Water quality management areas where people reside, such as a but they may still participate in water programs are geared to achieving these Federal prison, hospital, or military quality protection through participating goals and must be updated every 3 base. These facilities could be included in the CWA section 401 certification years. In addition, States are required to under the definition of a regulated small process (for any permits) and through submit a prioritized ranking of waters Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1559 requiring TMDLs. (See Sections II.L.1 F. Tribal Role considers ‘‘trust lands,’’ which were and II.L.2 for more information on water validly set apart for the use of Indians, 1. Background quality standards and TMDLs, to be ‘‘within a reservation’’ for respectively) States and interstate a. EPA’s Indian Policy purposes of the CWA (e.g., 58 FR agencies monitor for contaminants in EPA is committed to the nine 67970). ambient water, fish tissue, and specific principles outlined in its 1984 Indian Once authorized as the permitting/ point sources. In addition, they conduct Policy, which include working with program authority, a Tribe (instead of intensive monitoring in watersheds (or Tribes in a government-to-government EPA) may operate the NPDES and at specific sites within a watershed) to relationship, recognizing Tribal sludge management programs on its develop efficient control strategies for sovereignty, and dealing with the Tribal reservations. Otherwise, EPA is generally the permitting/program point and nonpoint sources. CWA government as the primary party for authority within Indian country. In any section 305(b) Reports summarize this decisionmaking and management of environmental issues on the Indian case, the Tribe may also seek authority information and must be submitted to to operate a CWA section 303 water reservations, consistent with EPA EPA every 2 years. It is critical that quality standards program. Tribes with standards and regulations (U.S. States and Tribes evaluate existing approval to operate a CWA section 303 Environmental Protection Agency, monitoring programs, revise them as water quality standards program may American Indian Environmental Office. needed to ensure that meaningful data also issue certifications under CWA 1996. Working Effectively With Tribal are being collected, and share section 401. information with the local communities. Governments. Participant Manual, (See Section II.L.4 for additional Interim Final, U.S. EPA Training b. Existing NPDES Regulations for information on monitoring.) Seminar). EPA has affirmed and carried Storm Water forward its commitment to the 1984 The existing NPDES regulations for 2. Comply With Applicable Indian Policy in many ways. In this storm water discharges associated with Requirements as a Discharger regard, on March 14, 1994, EPA industrial activities extend coverage to established the American Indian Today’s proposal would cover State or private, State, and federally owned Environmental Office and Tribal industrial facilities located on Indian Tribally owned or operated separate Operations Committee. EPA believes reservations. Further, the NPDES storm water systems in a variety of that the approach in today’s proposal is regulations cover industrial facilities ways. These systems generally drain consistent with the principles of the owned or operated by a Tribe with a areas where people reside, such as a policy. Further, today’s proposal has population of more than 100,000 people prison, hospital, or other populated been developed with the participation within the reservation and cover all facility. These systems could be of the EPA Indian Office, noted above. Tribally owned or operated airports, included under the definition of a In addition to storm water, the 1987 power plants, and uncontrolled sanitary regulated small municipal separate CWA amendments specifically focus on landfills. The NPDES regulations for storm sewer system, which specifically ‘‘Indian Tribes.’’ Under section 518, storm water associated with industrial includes systems operated by State EPA may treat Indian Tribes in the same activity established October 1, 1992, as departments of transportation. manner as States for the purposes of the deadline to apply for NPDES permit Alternatively, they could be included certain provisions of the CWA, coverage. EPA issued baseline NPDES under the section addressing storm including section 402 (National storm water general permits covering water discharges associated with other Pollutant Discharge Elimination System) industrial and construction activities in activities, including construction. In any and section 303 (water quality standards September 1992 and a multisector case, discharges from these government- and implementation plans). Section NPDES storm water general permit owned facilities would need to comply 518(e) establishes a number of criteria covering a number of industrial with all applicable NPDES for the treatment of an Indian Tribe in categories in September 1995, as requirements. Failure to comply could the same manner as a State. These revised. Many industrial facilities result in enforcement actions. State or criteria are discussed in a Federal covered under the NPDES regulations Tribal facilities could act as models for regulation regarding Tribal eligibility for for industrial activities, including municipal and private sector facilities administering NPDES and State sludge construction, and located on Indian and implement or test state-of-the-art management programs (see 58 FR reservations are included in the management practices and control 67966, December 22, 1993; see also 59 applicability sections of these general measures. FR 64339, December 14, 1994). Upon permits and can seek general permit meeting the criteria, a Tribe seeking coverage for satisfying program 3. Communicate With EPA authorization to administer one of the requirements. CWA water quality programs would Existing storm water permit Under approved NPDES programs, acquire Treatment in the Same Manner application regulations address storm States and Tribes have an ongoing as a State status for that program. Under water discharges from large and obligation to share information with EPA’s final regulation, the Tribe’s water medium municipal separate storm EPA on a periodic basis. This dialogue quality or sludge management program sewer systems (§ 122.26(a)(1)). is particularly important in the section authority could extend to lands within Regulations at § 122.2 define the term 402(p)(6) storm water program where a ‘‘Federal Indian reservation.’’ The ‘‘municipality’’ to include ‘‘an Indian these governments continue to develop CWA section 518(h)(1) uses the term Tribe or an authorized Indian Tribal a great deal of the guidance and ‘‘Federal Indian reservation’’ to define organization.’’ Consequently, the criteria outreach related to water quality. EPA the territorial limits for Tribal authority used by the NPDES permitting authority would continue to use the FACA for CWA purposes. The preambles to for coverage of municipal dischargers process in developing materials related EPA regulations, including NPDES extends to separate storm sewer systems to the section 402(p)(6) program and program regulations, more fully explain that are Tribally owned or operated. At input from States and Tribes throughout the term Federal Indian reservation. this time, no Indian reservations are this process would be critical. Most notably, EPA has clarified that it covered under the existing municipal 1560 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

NPDES storm water program. Thus, the Federal Indian Reservations raises discharges in ‘‘Indian Country’’ (61 FR appendices to the definitions of large complex legal questions. See 58 FR 65049, December 10, 1996). In the cases and medium separate storm sewer 67966 and 59 FR 64339. Thus, the of the 20 Tribes outside of Oklahoma, systems (Part 122, Appendices F–I) list Agency invites comment that would Tribal populations within urbanized no reservations for automatic coverage. assist the Agency in developing final areas range from very small numbers to Likewise, EPA has not yet designated an rule language to recognize that Tribes more than 32,000. In the case of the Indian reservation for coverage based on with MS4s proposed for regulation seven Oklahoma Tribes, the population other factors to be considered under under today’s proposal would only need numbers are much larger. It is unlikely, CWA section 402(p)(2)(E). to implement the municipal measures however, that large populations fall proposed in section 122.34 to the extent 2. Today’s Proposal within areas that would be determined such Tribes have authority under to be an Indian reservation, as defined The current proposed regulation for federal Indian law.) If the Indian in section 518. In the cases of the 20 the extension of the existing NPDES reservation were located within an Tribes outside of Oklahoma, 9 Tribes program for storm water would cover ‘‘urbanized area,’’ as defined in have populations less than 1,000 and, two types of dischargers located on § 122.32(a)(1) of today’s proposed rule, thus, would be waived from proposed reservations. First, the proposal would the Tribe could be an owner or operator requirements for the municipal designate storm water discharges from of a regulated small municipal separate program. Eight Tribes have a population any regulated small municipal separate storm sewer system (only the urbanized between 1,000 and 10,000, and 3 have storm sewer system, including Tribally area portion of the reservation would be a population above 10,000. owned or operated systems. Second, the regulated under an NPDES permit). As As mentioned previously, EPA proposal would regulate discharges discussed below, Tribal owners or proposes to exempt from the proposed associated with construction activity operators of regulated small municipal municipal program those Tribally disturbing between one and five acres of separate storm sewer systems—serving a owned small municipal separate storm land, including sites located on population under 1,000 within the sewer systems in urbanized areas that reservations. Owners or operators in urbanized area portion of the serve populations equal to or less than each of these categories of regulated reservation—would be exempted from 1,000 persons. As a practical matter, activity would need to apply for the proposed storm water regulation. EPA believes that it may be unlikely coverage under an NPDES permit within Tribes located outside an urbanized area that a Tribe with such a small 3 years and 90 days from the date of would not automatically be covered, but population would have the technical, publication of the final rule. Under would be able to request designation as administrative, and governmental existing regulations, however, EPA or an a regulated small municipal separate capability, including the staff, to authorized NPDES Tribe may require a storm sewer system from EPA. implement a storm water management specified storm water discharger to EPA believes that only a few Tribes program. Unlike similarly situated apply for NPDES permit coverage before located in urbanized areas would meet political subdivisions of States, these this deadline based on a determination the criteria to be regulated small Tribes in urbanized areas lack the that the discharge is contributing to a municipal separate storm sewer opportunity for support from States. violation of a water quality standard systems. The Tribal representative on Moreover, EPA anticipates that a Tribe (including designated uses) or is a the Storm Water Phase II FACA of this size might consider cooperative significant contributor of pollutants. Subcommittee asked EPA to provide a arrangements with surrounding local Under this proposal, a Tribal list of the Tribes located in urbanized governmental entities regarding storm governmental entity may regulate storm areas that would fall within the NPDES water discharges on its reservation in water program implementation. The storm water program under today’s nine exempt Tribes in urbanized areas two ways—as either an NPDES- proposal. In December 1996, EPA authorized Tribe or a regulated (populations below 1,000) include: developed a listing of federally • Augustine Band of Cahuilla Mission ‘‘municipality.’’ If a Tribe is already recognized American Indian Areas of Indians of the Augustine Reservation, authorized to operate the NPDES located in Bureau of the Census- CA. program, EPA would require the Tribe designated urbanized areas (see • Cabazon Band of Cahuilla Mission to implement today’s proposed Appendix 1). Appendix 1 not only of Indians of the Cabazon Reservation, regulations for the NPDES program for provides a listing of reservations and CA. storm water, as it does for authorized individual Tribes, but also the name of • Redding Rancheria of California. States, for covered dischargers located the particular urbanized area in which • Seminole Tribe of Florida, Dania, on the Indian reservation. (As discussed the reservation is located and an Big Cypress and Brighton Reservations. above, a Tribe may seek NPDES indication of whether the urbanized • Penobscot Tribe of Maine. authorization from EPA to operate the area contains a medium or large • Shakopee Mdewakanton Sioux NPDES program in the same manner as municipal separate storm sewer system Community of Minnesota (Prior Lake). a State.) For an outline of the role and that is already covered by the existing • Las Vegas Tribe of Paiute Indians of responsibilities of the permitting storm water regulations (‘‘Phase I’’). the Las Vegas Indian Colony, NV. authority in the storm water program, There are 27 Tribes on this list; 20 are • Reno-Sparks Indian Colony, NV. see the proposed § 123.35 (and Section outside of Oklahoma and 7 are in • Ysleta del Sur Pueblo of Texas. II.G. of today’s preamble) and existing Oklahoma. EPA recognizes that the list These nine Tribes in urbanized areas § 123.25(a). could have errors and invites comment would not be subject to permit Under today’s proposed rule, a Tribe on its accuracy. The applicability of requirements under today’s proposal, would be a regulated ‘‘municipality’’ for CWA section 518 to Tribes located in unless EPA subsequently and NPDES program purposes in two ways, Oklahoma would be determined on a specifically designated the discharges and, therefore, be required to implement case-by-case basis because of unique from their storm water systems as a the six minimum control measures to historical and legal considerations water quality problem. It is important to the extent allowable under Federal law. particular to that State. In authorization note that this is a preliminary list of (EPA recognizes that tribal regulation of of the Oklahoma NPDES program, EPA exempted Tribes—it may be the case non-members on fee lands within retained jurisdiction to regulate that additional tribally-owned small Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1561 municipal separate storm sewer systems requested EPA to clarify the meaning of standards, including impairment of would be eligible for the exemption ‘‘ownership of a Tribal municipal designated uses, or other adverse based on the population in the portion separate storm sewer system.’’ In impacts on water quality, as determined of the reservation that is located within response, EPA notes that an Indian tribe by local conditions or watershed and the urbanized area. EPA seeks comment or an authorized Indian Tribal TMDL assessments. EPA’s aim is to on any additional Tribes listed in organization is a municipality under address adversely impacted areas while Appendix 1 that may qualify for this section 502(4) of the CWA, unless a protecting areas with the potential for proposed exemption. Tribe is treated as a State under section problems. EPA encourages NPDES Outside of urbanized areas, non- 518(e) of the CWA. ‘‘Indian Tribe’’ permitting authorities, local authorized Tribes would be subject to means any Indian Tribe, band, group, or governments, and the interested public potential designation by EPA based on community recognized by the Secretary to work together in the context of a the criteria established for designating of the Interior and exercising watershed plan to address water quality all other small municipal separate storm governmental authority over a Federal issues, including those associated with sewer systems. A Tribe not otherwise Indian reservation. municipal storm water runoff (see covered by the proposed extension of Section I.H. of today’s preamble for G. NPDES Permitting Authority’s Role the existing NPDES storm water further discussion). program would also be able to request for the CWA Section 402(p)(6) designation for coverage by EPA. In both Municipal Program a. Develop Designation Criteria cases, a Tribe would need to comply As noted previously, the NPDES Under a new § 123.35(b), the NPDES with all terms, limitations, and permitting authority can be EPA or an permitting authority would need to conditions of the applicable municipal authorized State or an authorized Tribe. establish designation criteria to evaluate NPDES permit. EPA designation and For clarity, the following discussion whether a storm water discharge results NPDES permit coverage would allow a describes the role of the NPDES in or has the potential to result in Tribe to operate a federally recognized permitting authority under today’s exceedances of water quality standards, ‘‘municipal’’ storm water management proposal. including impairment of designated program and extend Federal recognition uses, or other significant water quality 1. Comply With Other Requirements to requirements the Tribe would place impacts, including habitat and on dischargers of storm water into the NPDES permitting authorities would biological impacts. These criteria would Tribe’s separate storm sewer system. need to perform certain duties to need to be applied to all municipal This federal regulation could result in implement the CWA section 402(p)(6) separate storm sewer systems located federal enforcement of the Tribal program. EPA is proposing § 123.35(a) outside of an urbanized area with a program. Moreover, the designation for to emphasize that permitting authorities population of at least 10,000 and a NPDES coverage would provide an have existing obligations under the population density of at least 1,000. opportunity for a Tribe to enhance its NPDES program with which they must EPA estimates a total of 583 role in the regulation of storm water comply. Section 123.35 focuses on incorporated places and 2 municipios in discharges within its reservation specific issues related to the role of the Puerto Rico (Arroyo and Fajardo) fall without having to undertake the entire NPDES authority to support within this 10,000 population/1,000 NPDES program and its existing administration and implementation of density subset and would need to be requirements. the municipal storm water program examined for potential designation. During the public comment period under CWA section 402(p)(6). EPA would recommend that the following today’s proposal, EPA plans NPDES permitting authority consider, in 2. Designate Sources to notify each of the Tribes in urbanized a balanced manner, certain locally- areas that are or may be impacted by A new § 123.35(b) addresses the focused criteria for designating any this proposed regulation and will requirements for the NPDES permitting incorporated place, county, or place engage in a discussion of the impact of authority to designate sources of storm under the jurisdiction of a governmental the regulation on these Tribes. EPA water discharges to be regulated under entity located outside of an urbanized invites comment regarding the §§ 122.32 through 122.36 of today’s area on the basis of other significant appropriateness of its approach to proposed rule. NPDES permitting water quality impacts. EPA proposes to Tribes in urbanized areas, specifically authorities would be required to recommend consideration of criteria the proposed exemption for Tribal develop a process, as well as criteria, to that would include discharge to municipal separate storm sewer systems designate municipal sources and the sensitive waters, high growth or growth serving populations under 1,000 people. authority to designate a small municipal potential, high population density, separate storm sewer system where the contiguity to an urbanized area, 3. Other Relevant Issues otherwise applicable requirements have significant contributor of pollutants to During the Storm Water Phase II been waived under proposed § 122.33(b) waters of the United States, and FACA Subcommittee process, the Tribal if circumstances change. EPA is ineffective control of water quality representative asked how EPA would proposing that EPA may make concerns by other programs. The apply the NPDES program with respect designations if an NPDES-approved proposed designation criteria are to non-federally recognized Indian State or Tribe fails to do so. intended to help encourage the reservations and Tribes. At present, EPA NPDES permitting authorities could permitting authority to use an objective interprets section 518 of the CWA as also designate areas that should be method for identifying and designating, applying only to federally recognized included in the storm water program (as on a local basis, sources that adversely Tribes and Indian reservations and as regulated small municipal separate impact water quality. not applicable to non-federally storm sewer systems) but are not located • Discharge to sensitive waters: The recognized Indian reservations and in an ‘‘urbanized area’’ and, therefore, potential impacts of storm water runoff Tribes. EPA regional offices will deal would not be designated automatically. depend, in part, on the sensitivity of the with this issue on a case-by-case basis Such areas would be brought into the receiving waters. For example, cold when it is brought to their attention. In program if found to have actual or water fisheries, such as trout streams, addition, a State representative potential exceedances of water quality show greater levels of impairment from 1562 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules poor erosion and sediment control of municipal sources. Even areas with could determine that the NEP programs than do other fisheries that are relatively low population densities (i.e., comprehensively addresses impacts to less dependent on the stream substrate. less than two residential units per acre) water quality from storm water EPA recommends that permitting can have 10 to 20 percent impervious discharges for certain systems and, authorities identify, in coordination area (Schueler, T. 1987. Controlling therefore, the systems would not need to with Federal, State, and local agencies, Urban Runoff: A Practical Manual for be designated under the CWA section and perhaps prioritize, designations Planning & Designing Urban BMPs. 402(p)(6) program. with regard to the sensitivity of the Metropolitan Washington Council of These criteria are meant to be taken in resource. Sensitive waters generally Governments). Macroinvertebrate the aggregate, with a great deal of include public drinking water intakes diversity becomes poor when flexibility as to how each would be and their designated protection areas; impervious land exceeds 10 to 15 weighed in order to best account for swimming beaches and waters in which percent (Klein, 1979). Since this study, watershed and other local conditions swimming occurs; shellfish beds; extensive research from around the and to allow for a more tailored case-by- designated Outstanding National country has found this threshold to be case analysis. The application of criteria Resource Waters; National Marine consistent with other studies (Schueler, is meant to be geographically specific. Sanctuaries; waters within Federal, T. 1995. Environmental Land Planning Furthermore, each criterion does not State, and local parks; and waters Series: Site Planning for Urban Stream have to be met in order for the owner containing threatened or endangered Protection. Prepared for Metropolitan or operator of a small municipal species and their habitat, as well as Washington Council of Governments.). separate sewer system to qualify for other waters so designated. Further, higher density residential areas designation, nor would a system • High growth or growth potential: To (i.e., two to ten residential units per necessarily be designated on the basis of protect watersheds and their receiving acre) have been correlated with as much one or two criteria alone. EPA plans to waters from nearly certain adverse as 35 percent imperviousness. By provide comprehensive guidance to impacts, EPA proposes to recommend recommending this criterion, EPA does more fully develop its recommendations that areas of high growth or growth not aim to encourage lower density for appropriate criteria, as well as offer potential should also be identified and development and urban sprawl but detailed information on how the criteria included in the designation criteria. rather good urban design and could be applied and what standards Using this factor could minimize future development patterns. could be used. EPA seeks comment on restoration or retrofitting costs. Growth • Contiguity to an urbanized area: additional designation criteria, as well potential can be measured in various The areas closely outside of an as the validity and applicability of the ways, including projected building urbanized area have a good potential for proposed criteria. starts, comprehensive plans, zoning future growth and may also have EPA believes that the application of maps, bond ratings, and the condition of significant impacts on a neighboring the recommended designation criteria, infrastructure and building vacancies. regulated municipality that is within the when considered as a composite, would EPA would recommend that, for any urbanized area. This designation provide an objective indicator of real given 10-year period, discharges from criterion would allow for an extension and potential water quality impacts municipal separate storm sewer systems of the seamless coverage provided by from urban runoff on both the local and in areas with localized population the regulation of urbanized areas where watershed levels. EPA encourages the growth rates of more than 10 percent necessary. The proposed rule also application of the recommended criteria should be evaluated for designation. captures this concept in § 123.35(b)(4). in a watershed context, thereby allowing Members of the Storm Water Phase II • Significant contributor of pollutants for the evaluation of the water quality FACA Subcommittee questioned to waters of the United States: This impacts of the portions of a watershed whether a 1 percent threshold (10 criterion is one of the basic tenets of outside of an urbanized area. For percent over a 10-year period) for designation and is meant to capture all example, situations exist where the ‘‘high’’ growth was reasonable. significantly contributing sources in an urbanized area represents a small According to EPA calculations based on effort to have both comprehensive and portion of a degraded watershed, and Census data from 1980 to 1990, the equitable coverage (see CWA section the adjacent nonurbanized areas of the average rate of growth in the United 402(p)(2)(E), 40 CFR 122.26(a)(5)). It watershed have significant cumulative States during that 10-year period was also aids in developing a watershed effects on the quality of the receiving more than 4 percent. For the same approach. waters. • Ineffective control of water quality period, the average rate of growth b. Apply Designation Criteria within urbanized areas was 15.7 percent concerns by other programs: EPA and the average for outside of urbanized proposes to recommend that NPDES After customizing the designation areas was just more than 1 percent. EPA permitting authorities carefully consider criteria for local geography, the believes that these calculations help to whether the storm water runoff from a permitting authority would have to support the statement that a growth potentially designated area is effectively apply such criteria, at a minimum, to percentage that is more than 10 times addressed under other regulations or any incorporated place, county, or place the national average for areas outside of programs, such as CZARA and other under the jurisdiction of a governmental urbanized areas is indeed a high rate of nonpoint source programs. For example, entity (including but not limited to growth for these areas and should be a an area covered under the National Tribal or Territorial governments) basis for designation of municipal storm Estuary Program (NEP) under CWA located outside of an urbanized area that water systems. section 320 is required to develop a has both a population of at least 10,000 • High population density: Comprehensive Conservation and and a population density of 1,000 Population density is related to the level Management Plan (CCMP) for managing people per square mile or greater (see of human activity, which has been the estuarine watershed. The CCMP proposed § 123.35(b)(2)). If the NPDES shown to be directly linked to levels of addresses three general resource areas: permitting authority determines that the impervious land surfaces. Therefore, water and sediment quality, living place or county meets the criteria, they EPA recommends ‘‘high population resources, and land use and water would need to designate all small density’’ as one criterion for designation resources. The permitting authority municipal separate storm sewer systems Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1563 located in the place or county as water regulations at 40 CFR local government representatives on the regulated small municipal separate 122.26(a)(1)(v). Similarly, the third Storm Water Phase II FACA storm sewer systems under the NPDES party petition process for small Subcommittee that a local government storm water program within 3 years and municipal separate storm sewer systems should not have to shoulder total 90 days of publication of the final rule. (including expeditious deadlines for responsibility for a storm water program Alternatively, the NPDES authority acting on such petitions) is consistent when storm water discharges from could designate within 5 years from the with the existing storm water another municipality are also date of final regulation if the regulations at 40 CFR 122.26(f) (4) & (5). contributing pollutants or adversely designation criteria are applied on a EPA solicits comment on the proposed affecting water quality. This provision watershed basis where a comprehensive designation approach. would also help to provide some watershed plan exists (a comprehensive It is important to note that NPDES consistency among municipalities and watershed plan is one that includes the permitting authorities could designate facilitate watershed planning in the equivalents of TMDLs) (see proposed any owner or operator of a municipal implementation of the NPDES storm § 123.35(b)(3)). The Agency seeks to separate storm sewer system, including water program. EPA recommended provide incentives for watershed-based one below 10,000 in population and physical interconnectedness in the designations. 1,000 in density. EPA established the existing NPDES storm water regulations The timeframe of 3 years and 90 days 10,000/1,000 threshold primarily for as a factor for consideration in the would allow States and Tribes up to 2 prioritization purposes based on the designation of additional sources. The years to make any necessary statutory likelihood of adverse water quality municipal caucus raised an additional changes and receive program approval impacts at these population and concern relating to sheet runoff from from EPA, an additional year to develop population density levels. In addition, one adjoining jurisdiction to another, their general permit and designation the 1,000 persons per square mile thereby contributing to the discharges of criteria, and then 90 days for a regulated threshold is consistent with both the a neighboring municipal separate storm entity to submit its individual Bureau of the Census definition of an sewer system. EPA would like comment application or Notice of Intent (NOI) ‘‘urbanized area’’ (see Section II.H.2. on the extent to which this problem may under a general permit. Assuming a below) and a Storm Water Phase II exist and ways in which it could be March 1, 1999, final rule, the resulting FACA Subcommittee work group’s addressed. EPA also welcomes comment deadline would be May 31, 2002. EPA discussion concerning the definition of on this proposed designation provision. believes this would be an adequate a regulated small municipal separate Today’s proposal does not include timeframe and would provide storm sewer system. interim deadlines for identifying significant guidance to NPDES EPA has considered the request from physically interconnected municipal permitting authorities on the some Storm Water Phase II FACA separate storm sewer systems. EPA responsibilities to be completed during Subcommittee members that interim believes that this determination would this period. If an NPDES-authorized deadlines be established for occur on a case-by-case basis where State or Tribe does not develop and development of designation criteria and deadlines would only work to limit the apply designation criteria, then EPA believes that the designation deadline permitting authority’s ability to identify might do so. identified in today’s proposed rule at such systems. However, in accordance EPA believes it has adequate authority § 123.35(b)(3) provides States and Tribes with the deadlines identified in to apply a State’s designation criteria (or with a flexibility that allows them to § 123.35(b)(3) of today’s proposal, EPA to develop and apply designation develop and apply the criteria locally in encourages the permitting authority to criteria) to designate sources in an a timely fashion, while at the same time make that determination within 3 years authorized NPDES State. Such authority establishing an expeditious deadline. from the date of publication of the final would derive from the text of section c. Designate Physically Interconnected rule or within 5 years if the permitting 402(p)(6), which provides for the Municipal Separate Storm Sewer authority is implementing a designation of sources other than those Systems comprehensive watershed plan. already regulated under section Alternatively, the affected jurisdiction 402(p)(2). EPA does not believe that In addition to applying criteria on a could use the petition process under 40 section 402(c)(1), which requires EPA to local basis for potential designation, the CFR 122.26(f) in seeking to have the suspend issuance of Federal NPDES NPDES permitting authority would be permitting authority designate the permits in an authorized State, would required to designate any owner or contributing jurisdiction. preclude EPA designation of particular operator of a municipal separate storm small municipal separate storm sewer sewer system that contributes d. Address Public Petition for systems (based on subsequently- substantially to the storm water Designation developed criteria applicable in a pollutant loadings of a physically Today’s proposal would recognize the particular State) after promulgation of interconnected municipal separate existing opportunity for the public to today’s proposed rule because storm sewer system that is regulated by petition the permitting authority for designation of sources is independent of the NPDES storm water program (see designation of a point source to be (and precedes) the issuance of permits. proposed § 123.35(b)(4)). To be regulated to protect water quality, as In addition, as discussed later in Section ‘‘physically interconnected,’’ the contained in existing NPDES regulations II.I.4. entitled, Residual Designation municipal separate storm sewer system, (see 40 CFR 122.26(f)). Any person may Authority, EPA believes that section including roads with drainage systems petition the permitting authority to 402(p)(6) provides the Agency with and municipal streets, of one entity require an NPDES permit for a discharge authority to subsequently designate would be physically connected directly composed entirely of storm water that individual sources under today’s to the municipal separate storm sewer contributes to a violation of a water proposed rule. Today’s approach for system of another entity. This provision quality standard or is a significant designation by EPA, even in authorized would apply to all municipal separate contributor of pollutants to the waters of NPDES States, would also be consistent storm sewer systems located outside of the United States (see proposed with the authority currently available to an urbanized area. EPA added this § 123.35(c)). NPDES permitting the Agency under the existing storm section in recognition of the concerns of authorities would have to make a final 1564 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules determination on any petition within interested in data submitted on storm proposal, would be responsible for 180 days after receiving the petition (see water discharges and associated certifying on a form provided by the proposed § 123.35(c)). EPA believes that pollutants of concern. NPDES permitting authority that they setting a limit of 180 days balances the are covered by TMDLs or a watershed 3. Provide Waivers public’s need for a final determination plan that indicates that discharges from within a finite period of time and the EPA received comments from their particular system are not having an NPDES permitting authority’s need to numerous State representatives that the adverse impact on water quality (i.e., control its workload. EPA is also proposal should recognize the efforts of they were not assigned wasteload proposing that if an NPDES-approved existing State programs to address the allocations under TMDLs) and, State or Tribe fails to act within the 180- significant concerns that potentially therefore, implementation of storm day timeframe, EPA may make a impact watersheds. In response, the water controls is not necessary and the determination on the petition. EPA Agency is proposing to provide some waiver provision requirements have believes that public involvement is an flexibility under § 122.33(b) that allows been met. Since the municipal waiver is important component of the NPDES NPDES permitting authorities to waive indefinite, the owner or operator would program for storm water and feels that otherwise applicable requirements for not need to re-certify at the beginning of this provision encourages public certain regulated small municipal each permit term. EPA encourages the participation. Section II.K, Public sources. Such waivers could be granted permitting authorities to make their Involvement/Public Role, further in cases where the jurisdiction served waiver determinations as soon as discusses this topic. by the regulated small municipal possible in an attempt to avoid having The Storm Water Phase II FACA separate storm sewer system includes a the owners or operators of regulated Subcommittee provided EPA with population of less than 1,000 persons, small municipal separate storm sewer extensive feedback on today’s proposed its discharges are not contributing systems apply for a permit and begin to approach. Several commenters have substantially to the storm water develop a program, but then later be questioned the justification for the use pollutant loadings of a physically waived from the applicable of urbanized areas or the designation interconnected regulated municipal requirements. EPA seeks comment from criteria selected by EPA as guidance to separate storm sewer system, and the permitting authorities on how they the NPDES permitting authority (see owner or operator of the small envision the process of implementing § 123.35(b)(1)). Municipal members of municipal separate storm sewer system municipal waivers under today’s the subcommittee noted that the has certified that storm water controls proposed rule. Specifically, EPA would proposed rule could result in inequities are not needed based on (1) wasteload like comment on how the program among local governments and would allocations that are part of TMDLs that could operate on a basis of self- not cover all contributors of pollutants address the pollutants of concern, or (2) certification for waivers. to receiving waters. Some subcommittee a comprehensive watershed plan, The NPDES permitting authority representatives expressed concern that implemented for the waterbody, that could, at any time, mandate compliance the proposed rule would impede the includes the equivalents of TMDLs and with program requirements from a watershed approach due to its blanket addresses the pollutants of concern. If previously waived regulated small coverage within urbanized areas but such a waiver is granted, the TMDLs or municipal separate storm sewer system only specific designation outside of watershed plan would need to if circumstances change. For example, a urbanized areas. Today’s proposed rule demonstrate with reasonable assurance waiver could be withdrawn in addresses the problem of perceived that load reductions take place pursuant circumstances in which the permitting inequities through the provision that to CWA section 303(d). It is important authority later determines that a storm any municipal separate storm sewer to note that EPA will continue to require water discharge to a small stream would system can be designated by the States to comply with their TMDL cause adverse impacts to water quality permitting authority if found to be implementation schedules. resulting in a violation of water quality significantly contributing pollutants to Where a State is the NPDES standards. A ‘‘change in circumstances’’ the waters of the United States or permitting authority, the permitting could involve receipt of new contributing to an exceedance of water authority would be responsible for the information by the permitting authority. quality standards. EPA believes that the development of the TMDLs or their EPA invites comments on concerns proposed approach, which provides for equivalent determination as part of a that the permitting authority could the designation of sources to be watershed plan as well as the improperly grant waivers in an effort to regulated based on local conditions, assessment of the extent a small provide relief to regulated entities based would facilitate watershed planning. municipal separate storm sewer on concerns unrelated to water quality. EPA relies on data summarized in the system’s discharge is contributing EPA is also concerned that a permitting NURP study and in the CWA section pollutants to a neighboring regulated authority could redirect resources from 305(b) reports to support an approach system. In states where EPA is the other environmental programs in order for targeted designation outside of permitting authority, EPA would use a to develop a watershed approach that urbanized areas. EPA has developed State’s watershed plan and TMDLs, promotes the issuance of the greatest designation criteria based on findings of where available. From these number of waivers possible. the NURP study and other studies that assessments, the permitting authority EPA also invites comment on the indicate pollutants of concern, could make its determination regarding option of broadening the universe of including total suspended solids, wasteload allocations and might potential waivers by waiving the chemical oxygen demand, and determine that storm water controls are requirements of all small municipal temperature. These criteria were the not required for certain small municipal separate storm sewer systems that have subject of considerable discussion by separate storm sewer systems. Once a population below 5,000, rather than the Storm Water Phase II FACA these determinations are made, the 1,000, and meet the same criteria as in Subcommittee and were revised in owner or operator of the regulated small today’s proposal. response to recommendations from the municipal separate storm sewer system, An option not proposed by EPA today subcommittee. EPA invites comment on in seeking a waiver from the otherwise is a waiver based on low population or this issue. EPA would be particularly applicable requirements under today’s low population density alone. EPA Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1565 considered a waiver option based on a proposing §§ 123.35(d) through (g) to In § 123.35(e), EPA is proposing that simple population threshold. This ensure a certain level of consistency for NPDES permitting authorities specify a option would have automatically permits, yet providing numerous time period of up to 5 years from the waived all places within urbanized opportunities for flexibility. NPDES issuance date of an NPDES permit for areas with a population of 1,000 persons permitting authorities must issue regulated small municipal separate or below. EPA found it difficult to NPDES permits to cover municipal storm sewer system owners or operators justify a particular threshold number sources that would be regulated under to fully develop and implement their without allowing for more flexibility or § 122.32 of today’s proposed rule, unless storm water programs. EPA believes this additional criteria in order to determine waived under § 122.33(b). EPA time period is adequate. As discussed if storm water controls were necessary. encourages permitting authorities to use more fully below, permitting authorities This option also did not fully account general permits as the vehicle for should be providing extensive support for water quality impacts and would permitting and regulating small to the local governments to assist them create arbitrary donut holes, some of municipal separate storm sewer in developing and implementing their which could have significant impacts on systems. The Agency notes, however, programs. water quality and should be regulated. that some owners or operators may wish Under proposed § 123.35(g), if an Small entity representatives to take advantage of the option to join NPDES permitting authority issues a commented, however, that as a co-permittee with a municipality general permit to authorize storm water municipalities with less than 1,000 regulated under the existing NPDES discharges from regulated small persons may lack the technical capacity storm water program. municipal separate storm sewer to certify that their discharges are not Today’s proposal includes a systems, the NPDES permitting contributing to adverse water quality provision, § 123.35(f), that requires authority would also need to provide or impacts in areas where a TMDL or NPDES permitting authorities to include issue a menu of regionally appropriate comprehensive watershed plan has not the requirements in proposed § 122.34 and field-tested BMPs that the been developed by the permitting including as modified in accordance permitting authority determines to be authority. This concern was shared by with §§ 122.33(a)(3), 122.34(c), cost-effective. The regulated small the Federal Small Business Advocacy 122.35(b)) for NPDES permits issued for municipal separate storm sewer systems Review Panel (see Section VII. below). regulated small municipal separate could choose to either select from this EPA is thus requesting comment on the storm sewer systems. See Section menu or select other BMPs that they feel option of waiving coverage for all II.H.3.a, Minimum Control Measures, for are appropriate. The purpose of this municipalities with less than 1,000 more details on the actual requirements. menu is to provide small municipal separate storm sewer systems with people (including those located in In an attempt to avoid duplication of additional guidance to assist them in urbanized areas) unless the permitting effort, EPA is specifically proposing in authority determines that they should implementing their storm water § 122.34(c) to allow NPDES permitting be required based on significant adverse program. The menu would be further authorities to include permit provisions water quality impacts. elaborated upon in guidance materials In addition to waivers, the Agency is that incorporate by reference qualifying provided as part of the tool box (for also considering possible approaches for local, Tribal, or State municipal storm further discussion regarding the tool box providing incentives for local water management program see Section II.A.5.). The menu itself is decisionmaking that would limit the requirements that address one or more not intended to replace more adverse water quality impact associated of the minimum controls of proposed comprehensive BMP guidance with uncontrolled growth in a § 122.34(b). For a local, Tribal, or State materials. Separate guidance documents watershed. In situations where there are program to ‘‘qualify,’’ it would need to that discuss the results from EPA- special controls or incentives (e.g. impose, at a minimum, the relevant sponsored nationwide general studies transferable development rights, requirements of § 122.34(b). A regulated on the construction, operation and traditional neighborhood development small municipal separate storm sewer maintenance of BMPs would be ordinances) in place directing system would still need to submit an provided as part of the tool box efforts. development toward compact/mixed application, either an individual The permitting authority may include use development and away from application or an NOI under a general this menu in the general permit when it wetlands, open space, or other protected permit, but would follow the is issued. This menu would need to be lands, it may be possible to provide requirements of the qualifying local, issued within two years of the some relief to municipalities in terms of Tribal, or State program instead. The publication of the final rule. This implementation of the proposed Agency invites comment on this deadline tracks the amount of time that minimum control measures in areas of approach. the State permitting authority would infill, or compact mixed use, the relief Under § 122.35(b), NPDES permitting have to make any necessary regulatory would pertain to minimum control authorities might also recognize existing or statutory changes to their program to measures concerning construction and responsibilities among governmental accommodate the rule requirements. If new infill development or entities for the minimum control an NPDES-approved State or Tribe redevelopment. Where TMDLs are done measures in an NPDES small municipal failed to provide or issue this menu in a watershed, the use of such controls storm water permit. For example, the within two years of the publication of or incentives by municipalities might be permit might allow for the State to be the final rule, EPA would be able to do considered as the basis for the TMDLs. responsible for addressing construction so. Failure of the State to issue the menu EPA solicits comment on this approach site runoff and require that the of BMPs would not affect the legal and any other recommendations for the municipalities develop substantive status of the general permit. Measurable use of such incentives. controls for the remaining minimum goals identified in a small municipal control measures. By acknowledging storm sewer system’s NOI, or individual 4. Issue Permits existing programs, this provision is application, would not be considered a NPDES permitting authorities have a meant to reduce the duplication of condition of the NPDES permit unless, number of responsibilities regarding the efforts and to increase the flexibility of and until, the permitting authority or permit process. The Agency is the NPDES storm water program. EPA provided or issued the menu of 1566 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

BMPs. The issuance of the menu of States and Tribes address point and In today’s proposed rule, all regulated BMPs would be critical to assure nonpoint source storm water discharges small municipal separate storm sewer protection of water quality since it through a variety of programs. In systems would need to establish a storm triggers the permittee’s requirement to developing the CWA section 402(p)(6) water program that meets the meet narrative performance standards. program, EPA recommends that States requirements of six minimum control measures, unless the system qualifies 5. Support and Oversee the Local and Tribes coordinate all of their water for, and the NPDES permitting authority Programs programs, including the continuing planning process (CPP), the existing grants, a waiver. These minimum NPDES permitting authorities would storm water program, the CZARA control measures would be public be responsible for supporting and program, and nonpoint source education and outreach on storm water overseeing the local municipal programs. impacts, public involvement/ programs. EPA is proposing § 123.35(h) In addition, NPDES permitting participation, illicit discharge detection to highlight issues associated with these and elimination, construction site storm responsibilities. authorities would be encouraged to use a brief (e.g., two-page) reporting format water runoff control, post-construction To the extent possible, NPDES storm water management in new permitting authorities should provide to facilitate compiling and analyzing data from submitted reports under development and redevelopment, and financial assistance to local pollution prevention/good municipalities, which often have proposed § 122.34. EPA would develop a model form for this purpose. housekeeping for municipal operations. limited resources, for the development Today’s proposal would allow for a and implementation of local programs. H. Municipal Role great deal of flexibility in how an owner EPA recognizes that funding for or operator of a regulated small 1. Scope of Today’s Proposal programs at the State and Tribal levels municipal separate storm sewer system may also be limited, but strongly The Agency has selected for today’s would be authorized to discharge under encourages States and Tribes to provide proposal an equitable and an NPDES permit by providing various whatever assistance possible. In lieu of comprehensive four-pronged approach options for obtaining permit coverage actual dollars, NPDES permitting for the designation and coverage of and satisfying the required minimum authorities could provide cost-cutting municipal sources. First, the approach control measures. For example, the assistance in a number of ways. For would define for automatic coverage the NPDES permitting authority could example, NPDES permitting authorities sources believed to be of most concern. incorporate by reference qualifying could develop outreach materials for Second, the approach would designate State, Tribal, or local programs in the municipalities to distribute or the sources that meet a set of objective NPDES general permit and could NPDES permitting authority could criteria used to measure the potential for recognize existing responsibilities actually distribute the materials. water quality impacts. Third, the among different governmental entities Another option would be to implement approach would designate on a case-by- for the implementation of minimum an erosion and sediment control case basis sources that ‘‘contribute control measures. In addition, a program across an entire State (or Tribal substantially to the storm water regulated small municipal separate land), thus alleviating the need for the pollutant loadings of a physically- storm sewer system could participate in municipality to implement its own interconnected [regulated] municipal the storm water management program of program. Obviously, NPDES permitting an adjoining regulated medium or large authorities would need to balance the separate storm sewer system.’’ Finally, the approach would designate on a case- municipal separate storm sewer system need for site-specific controls, which and could arrange to have another could be best handled by a local by-case basis, upon petition, sources that ‘‘contribute to a violation of a water governmental entity implement a municipality, with the need to offer minimum control measure for them. financial relief. EPA, States, Tribes, and quality standard or are a significant municipalities should work as a team in contributor of pollutants.’’ 2. Municipal Definition making these kinds of decisions. As explained earlier, today’s proposed This section explains which small NPDES permitting authorities would rule would automatically designate for municipal separate storm sewer systems be responsible for overseeing the local regulation small municipal separate would be regulated under today’s programs. They would need to work storm sewer systems located in proposed rule. This section also with the regulated community and other urbanized areas and would require that proposes several definitions of terms stakeholders to assist in local program NPDES permitting authorities examine used to describe the applicability of the development and implementation. This for potential designation, at a minimum, proposed program requirements. For might include sharing information, a particular subset of small municipal one particularly important definition, analyzing reports, and taking separate storm sewer systems located the definition of an ‘‘urbanized area,’’ enforcement actions, as necessary. outside of urbanized areas. Any small the discussion includes case studies and NPDES permitting authorities play a municipal separate storm sewer system a map as examples. This section vital role in supporting local programs automatically designated by the concludes with a discussion of the three by providing technical and proposed rule or designated by the alternatives EPA considered for programmatic assistance, conducting permitting authority under today’s determining which small municipal research projects, and monitoring proposed rule would be defined as a separate storm sewer systems would be watersheds. Another important role for ‘‘regulated’’ small municipal separate covered by today’s proposed rule. NPDES permitting authorities would be storm sewer system. Today’s proposal to ensure adequate legal authority at the also includes a provision that would Regulatory Language in Today’s local level so that municipalities could allow for a waiver from the otherwise Proposal implement their part of the CWA applicable requirements for some The CWA does not define the term section 402(p)(6) program. regulated small municipal separate ‘‘municipal separate storm sewer.’’ EPA NPDES permitting authorities are storm sewer systems, where warranted, has exercised its discretion to define the encouraged to coordinate and utilize the based on a comprehensive water scope of municipal systems consistent data collected under several programs. quality-based assessment. with its existing regulations. EPA Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1567 defined municipal separate storm sewer separate storm sewer system, pursuant regulated small municipal separate in the existing storm water permit to 40 CFR 122.26(b)(4) and (b)(7), or storm sewer system in any way. application regulations to mean, in part, designated under 40 CFR The Bureau of the Census definition a conveyance or system of conveyances 122.26(a)(1)(v).’’ Small municipal of ‘‘county,’’ adopted by EPA for the (including roads with drainage systems separate storm sewer systems include, purposes of today’s proposal, is ‘‘the and municipal streets) that is ‘‘owned or but are not limited to, systems operated primary legal subdivision of every State operated by a State, city, town borough, by local governments (including except Alaska and Louisiana.’’ (USDC, county, parish, district, association, or ‘‘municipios’’), State departments of 1994) For the purposes of today’s other public body designed or used for transportation, and State, Tribal, and proposed rule, the term ‘‘county’’ also collecting or conveying storm water federal facilities. The term ‘‘State, Tribal includes Louisiana’s county equivalent which is not a combined sewer and and federal facilities’’ includes, but is known as a parish and Alaska’s county which is not part of a Publicly Owned not limited to, military installations, equivalent, which is an organized Treatment Works as defined at 40 CFR penitentiaries, universities and similar borough. A county’s unincorporated 122.26’’ (see 40 CFR 122.26(b)(8)(i)). institutions with separate storm sewers territory includes all minor civil Today’s proposed rule adds to this draining areas. Municipal systems that divisions and census-designated places definition ‘‘the United States’’ as a were designated under 40 CFR but excludes all incorporated places. potential owner or operator of a 122.26(a)(1)(v) will continue to be Therefore, any area that is not an municipal separate storm sewer. This regulated under the existing storm water incorporated place would be included addition is meant to address an program and, therefore, are not within the definition of ‘‘county,’’ with omission from existing regulations and addressed under today’s proposed rule. the exception of Tribal or Territorial to clarify that Federal facilities are, in In today’s proposed rule (see areas. fact, covered by the NPDES program for §§ 122.32(a)(1) and 122.32(a)(2)), EPA The phrase ‘‘place under the municipal storm water discharges when defines ‘‘regulated small municipal jurisdiction of a governmental entity’’ the Federal facility is like other separate storm sewer systems’’ to includes, but is not limited to, places regulated municipal separate storm include all municipal separate storm within the jurisdiction of Tribes and sewer systems. Federal facilities may be sewers that are located in: Territorial governments. EPA is like other municipal separate storm (1) An incorporated place, county proposing this language in order to sewer systems due to similar residential (only the portion located in an include governmental entities that are populations and road systems; therefore, urbanized area), or other place under located within an urbanized area but anticipated storm water discharges the jurisdiction of a governmental entity whose government structure may not would also be similar. (including but not limited to Tribal or include incorporated places or counties. The existing municipal permit Territorial governments) located in an For example, Federal Indian application regulations define ‘‘medium’’ and ‘‘large’’ municipal urbanized area, as determined by the reservations are neither incorporated separate storm sewer systems as those latest Decennial Census by the Bureau places nor counties, but are sovereign located in an incorporated place or of the Census (see 55 FR 42592, October entities, and Puerto Rico has county with a population of at least 22, 1990), except for Federal Indian ‘‘municipios’’ as their primary local 100,000 (medium) or 250,000 (large) as reservations where the population government. The term ‘‘Tribes’’ includes determined by the latest Decennial within the urbanized area is under 1,000 any Indian Tribe, band, group, or Census (see 40 CFR 122.26(b)(4) and persons. community recognized by the Secretary 122.26(b)(7)). In today’s proposed rule, (2) An incorporated place, county, or of the Interior and exercising these regulations have been revised to other place under the jurisdiction of a governmental authority over a Federal define all medium and large municipal governmental entity other than those Indian reservation (40 CFR 122.2). separate storm sewer systems as those described in (1) above that is designated ‘‘Territorial governments’’ include the meeting the above population by the NPDES permitting authority. The following U.S. territories: the District of thresholds according to the 1990 NPDES permitting authority may Columbia, the Commonwealth of Puerto Decennial Census. The decision to designate any municipal separate storm Rico, American Samoa, Guam, the ‘‘freeze’’ the definition of medium and sewer system located outside of an Virgin Islands of the United States, and large municipal separate storm sewer urbanized area. See Section II.G, NPDES the Commonwealth of the Northern systems as of the 1990 Census was Permitting Authority Role for the CWA Mariana Islands. ‘‘Municipio’’ means a based on (1) a concern with deadlines, section 402(p)(6) Municipal Program, Puerto Rico division which has legally (2) an understanding that the permitting for more details on this process. established boundaries and constitutes a governmental unit. ‘‘Pueblo’’ or authority could always require more Definitions of Key Terms and Phrases from owners or operators of municipal ‘‘ciudad’’ means the barrio or group of separate storm sewer systems serving The Bureau of the Census definition barrios which are considered the ‘‘newly over 100,000’’ populations, and of ‘‘incorporated place,’’ adopted by municipio center of government. (3) the Agency’s intention to merge the EPA for purposes of today’s proposal, is ‘‘Federal Indian reservation’’ means Phase I existing and Phase II proposed any place reported to the Bureau as all land within the limits of any Indian programs into a single seamless storm legally in existence under the laws of reservation or rancheria under the water program (see §§ 122.26(b)(4), the respective State as a city, borough, jurisdiction of the U.S. Government, (b)(7) and (b)(16)). town, or village, with certain notwithstanding the issuance of any In today’s proposed rule, owners or exceptions. (U.S. Department of patent, and including rights-of-way operators of small municipal separate Commerce, Bureau of the Census. 1994. running through the reservation (40 CFR sewer systems may be regulated under Geographic Areas Reference Manual.) 122.2; see also Section II.F. of today’s the NPDES program for storm water. Because these Bureau of the Census preamble and section 518 of the CWA). Small municipal separate sewer systems exceptions would be included within Urbanized Areas Definition are ‘‘all municipal separate storm sewer the term ‘‘county’’ (see definition systems that are not designated as a below), they would not impact the The Bureau of the Census definition ‘‘large’’ or ‘‘medium’’ municipal application of today’s definition of a of ‘‘urbanized area,’’ adopted by EPA for 1568 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules the purposes of today’s proposed rule, is entities within a given urbanized area. boundaries some incorporated places as follows: For a more detailed description of the that were originally excluded from the An urbanized area (UA) comprises a place treatment of urbanized areas for storm water program due to the and the adjacent densely settled surrounding purposes of today’s proposal, see the population threshold of 100,000, most territory that together have a minimum following discussion entitled, of these previously unregulated donut population of 50,000 people. Nationwide Designation. Also, see holes would now be defined as The ‘‘densely settled surrounding Appendix 3 for a listing of urbanized regulated small municipal separate territory’’ adjacent to the place consists of the areas of the United States and Puerto sewer systems under today’s proposed following: Rico. rule and would be covered by the 1. Territory made up of one or more contiguous census blocks having a NPDES program for storm water. a. Nationwide (‘‘Automatic’’) In Puerto Rico, EPA is proposing to population density of at least 1,000 people Designation per square mile provided that it is: regulate the entire municipio where the a. Contiguous with and directly connected In today’s proposed rule, all small total population is equal to or greater by road to other qualifying territory, or municipal separate storm sewer systems than 100,000. Those municipios include b. Noncontiguous with other qualifying located in an incorporated place, Bayamon, Caguas, Carolina, Mayaguez, territory, and: county, or other place under the Ponce, and San Juan. For the other (1) Within 1 1/2 road miles of the main jurisdiction of a governmental entity municipios that are located within an body of the urbanized area and connected to that is included within an urbanized urbanized area and have populations of it by one or more nonqualifying census area would be automatically designated blocks that [a] are adjacent to the connecting less than 100,000, only the pueblo will road and [b] together with the outlying as ‘‘regulated’’ small municipal separate be regulated. qualifying territory have a total population sewer systems under today’s proposed i. Urbanized Area Description. There density of at least 500 people per square storm water program, provided that they are 405 urbanized areas in the United mile, or were not previously designated into the States that cover 2 percent of total U.S. (2) Separated by water or other existing storm water program. Unlike land area and contain approximately 63 undevelopable territory from the main body medium and large municipal separate percent of the nation’s population (see of the urbanized area, but within 5 road miles storm sewer systems under the existing Appendix 3 for a listing of urbanized of the main body of the urbanized area, as storm water regulations, not all small areas of the United States and Puerto long as the 5 miles include no more than 1 1/2 miles of otherwise nonqualifying municipal separate storm sewer systems Rico). These numbers include U.S. developable territory. would be designated under today’s Territories, although Puerto Rico is the 2. A place containing territory qualifying proposal and, therefore, a distinction is only territory to have census-designated on the basis of criterion 1 [above] will be made in the rule between ‘‘small’’ urbanized areas. Urbanized areas included in the urbanized area in its entirety municipal separate storm sewer systems constitute the largest and most dense (or partially, if the place is an extended city) and ‘‘regulated small’’ municipal areas of settlement. The purpose of if that qualifying territory includes at least 50 separate storm sewer systems. determining an ‘‘urbanized area’’ is to percent of the population of the place. If the EPA estimates that this automatic delineate the boundaries of place does not contain any territory designation would include development and map the actual built- qualifying on the basis of the above criterion, approximately 3,500 incorporated or if that qualifying territory includes less up urban area. The Bureau of the Census than 50 percent of the place’s population, the places and counties (about 16% of all geographers liken it to flying over an place is excluded in its entirety. incorporated places and counties urban area and drawing a line around 3. Other territory with a population density nationwide), 41 municipios (more than the boundary of the built-up area as of less than 1,000 persons per square mile, 50% of all municipios in Puerto Rico), seen from the air. provided that it: and 27 Tribes (although 9 of these An ‘‘urbanized area’’ comprises one or a. Eliminates an enclave of no more than Tribes would be exempted and there are more places—central place(s)—and the 5 square miles in the territory otherwise other special considerations—see adjacent densely settled surrounding qualifying for the urbanized area when the Section II.F, Tribal Role). In addition, as area—urban fringe—consisting of (1) surrounding territory qualifies on the basis of previously discussed, this definition incorporated places, (2) census population density, or b. Closes an indentation in the boundary of would include State, Tribal, and Federal designated places, and (3) county the territory otherwise qualifying for the highways and facilities located within nonplace territory that together have a urbanized area when the contiguous territory urbanized areas. minimum population of 50,000. qualifies on the basis of population density, It is important to note that if a county ‘‘Central places’’ include both provided that the indentation is no more than or Federal Indian reservation is only incorporated and census-designated 1 mile across the open end, has a depth at partially included in an urbanized area, places. ‘‘County nonplace territory’’ is least two times greater than the distance only the urbanized portion of the county the area of the county that does not across the open end, and encompasses no or Federal Indian reservation would be include incorporated or census- more than 5 square miles. regulated. Although rare, even if an designated places. (It is important to (55 FR 42592, October 22, 1990) incorporated place is only partially note that ‘‘county’’ as defined for the The full definition of an ‘‘urbanized included in the urbanized area, then the purposes of today’s proposed rule area’’ has been included primarily for entire place is regulated. The regulation includes census-designated places). The informational purposes. Because the of counties is meant to capture all urban fringe is a contiguous area with Bureau of the Census determines unincorporated areas located within the an average population density of at least urbanized areas based on the latest urbanized area in an effort to create a 1,000 persons per square mile at its decennial census, the owner or operator seamless program by avoiding the perimeter (see full ‘‘urbanized area’’ of a municipal separate storm sewer creation of unregulated areas definition above). system does not need to make any surrounded by regulated areas, The basic unit for delineating the calculations to determine eligibility as a sometimes referred to as ‘‘donut holes’’ urbanized area boundary is the census regulated small municipal separate in the regulatory scheme. For example, block. Census blocks are based on storm sewer system. The Bureau of the if an urbanized area contains a regulated visible physical boundaries, such as the Census provides detailed maps and medium or large municipal separate city block, when possible or on invisible comprehensive listings of all political sewer system that has within its political boundaries when not. In a Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1569 larger sense, the urbanized area area files already. New listings for • Case Study 1: Milwaukee, WI (total determination is not based on political urbanized areas based on the 2000 urbanized area population = 1,226,293) boundaries for counties or Federal Census will be available by July/August The Milwaukee, Wisconsin, Indian reservations but is for ‘‘places.’’ 2001, but the more comprehensive urbanized area has at its core the large • Place—A place is included in its computer files will not be available municipal separate storm sewer system entirety whether or not all of its census until late 2001/early 2002. Appendix 6 of Milwaukee, which is contained blocks meet the urbanized area to this preamble provides a list of within the county of Milwaukee. The definition. Therefore, this part of the incorporated places and counties urbanized area extends beyond the urbanized area determination is based proposed to be automatically designated boundaries of the city of Milwaukee into on political boundaries. However, it as part of today’s proposed rule. the county of Milwaukee and the four should be noted that in rare cases (128 Additional designations based on surrounding counties of Racine, places), a place is not included in its subsequent census years would be Wauklesha, Washington, and Ozaukee. entirety, but rather is only partly governed by the Bureau of the Census’ The county of Milwaukee is entirely included within the urbanized area, due definition of an urbanized area in effect within the urbanized area, while the to the existence of large expanses of for that year. Based on historical trends, other four counties are only partially vacant or very sparsely populated EPA expects that any area (incorporated within it. A total of five counties would territory within its incorporated area. place, county, or other place) be included in the storm water program, (Such ‘‘extended cities,’’ as they are determined by the Bureau of the Census but only the municipal separate storm called, are most common in North to be included within an urbanized area sewer systems in the urbanized portions Carolina due to their unique annexation as of the 1990 Census would not later of the counties would be automatically laws.) designated. In addition to the five • be excluded from the urbanized area as County/Federal Indian of the 2000 Census due to a possible counties, 38 incorporated places are reservation—A county is included in its change in the Bureau of the Census’ within the urbanized area and would entirety only if all of its census blocks, urbanized area definition. However, it is also be automatically designated as based on the county’s unincorporated important to note that even if this regulated small municipal separate area, meet the urbanized area definition. situation were to occur, a small storm sewer systems under today’s Unlike a place, a county is often ‘‘split’’ municipal separate storm sewer system proposal: River Hills Village, Mequon, into urbanized and non-urbanized once automatically designated into the Germantown, Lannon, Sturtevant, Wind portions, with no regard for political NPDES program for storm water under Point, Big Bend, Pewaukee, Bayside, boundaries. Under today’s proposed an urbanized area calculation for any North Bay, Butler, West Milwaukee, rule, only the urbanized portion of a given Census year would remain Thiensville, Elmwood Park, Elm Grove, ‘‘split county’’ would be covered. The Sussex, Fox Point, Hales Corners, regulated regardless of the results of same case applies to Federal Indian Cedarburg, St. Francis, Grafton, Oak subsequent urbanized area calculations. reservations. Creek, Brown Deer, Glendale, Most owners or operators of Appendix 2 is a simplified urbanized Greendale, Cudahy, Shorewood, municipal separate storm sewer systems area illustration to help demonstrate the Whitefish Bay, Franklin, Menomonee would not need to independently concept of urbanized areas in relation to Falls, New Berlin, Brookfield, determine the status of coverage under today’s proposed rule. The ‘‘urbanized Greenfield, South Milwaukee, today’s proposal. Most likely, a list of area’’ is the shaded area that includes Wauwataso, Waukesha, West Allis, City the places, counties, and other places within its boundaries incorporated of Racine. The result is a pattern where under the jurisdiction of a governmental places, a portion of a Federal Indian a regulated medium or large municipal entity within an urbanized area would reservation, an entire county, and separate storm sewer system core is be published with the general permit. If portions of three other counties. Any surrounded by regulated small not, they can contact their permitting and all owners and operators of small municipal separate storm sewer systems authority or the Bureau of the Census to municipal separate storm sewer systems located within unincorporated areas find out if their storm sewer systems are located in the shaded area would be (counties) and incorporated places. Each within an urbanized area. In addition, covered by the proposed rule. Any small owner or operator of a municipal the necessary information should be municipal separate storm sewers located separate storm sewer system in these available on the Bureau of the Census outside of the shaded area would be areas would be responsible for obtaining Internet Home Page (see http:// subject to potential designation by the an NPDES permit for the discharges www.census.gov/). Using data from the permitting authority. from their system. latest decennial census, the Census ii. Urbanized Area Profiles. To further • Case Study 2: Myrtle Beach, SC Bureau applies the urbanized area illustrate the concept of urbanized areas, (total urbanized area population = definition nationwide (including U.S. this section highlights two urbanized 58,384) Tribes and Territories) and determines areas and their relationship to the The Myrtle Beach, South Carolina, which places and counties are included NPDES storm water program. The first urbanized area does not include a within each urbanized area. For each case study is the Milwaukee, Wisconsin, medium or large municipal separate urbanized area, the Bureau provides full urbanized area, which already includes storm sewer system. The entire listings of who is included, as well as medium and large municipal separate urbanized area, with Myrtle Beach at its detailed maps and special CD–ROM storm sewer systems and would also core, would meet the definition of a files for use with computerized mapping include regulated small municipal regulated small municipal separate systems (such as GIS). Each State’s data separate storm sewer systems under storm sewer system. The Myrtle Beach center receives a copy of the list, and today’s proposed rule. The second case urbanized area spreads into two some maps, automatically. The States study is the Myrtle Beach, South counties, Harry and Georgetown also have the CD–ROM files and a Carolina, urbanized area, which would counties, and covers only two variety of publications available to them include only regulated small municipal incorporated places, Myrtle Beach and for reference from the Bureau of the separate storm sewer systems. Neither Surfside Beach. As was the case in the Census. In addition, local or regional urbanized area has within its Milwaukee example, the counties of planning agencies may have urbanized boundaries a Federal Indian reservation. Harry and Georgetown are only partially 1570 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules within the urbanized area. All owners or efforts, such as public education and the c. Waiving the Requirements for operators of municipal separate sewer maintenance and management of Regulated Small Municipal Separate systems located in the urbanized infrastructure on just the regulated Storm Sewer Systems portions of Harry and Georgetown areas. One commenter suggested that in Today’s proposed rule would include counties and in the two incorporated the case of a ‘‘split’’ county, only the some flexibility in the nationwide places would be included under the incorporated areas within the urbanized coverage of all small municipal separate NPDES storm water program as portion of the county should be storm sewer systems located in regulated small municipal separate regulated, not the entire urbanized urbanized areas by providing the storm sewer systems, resulting in portion of the county. EPA would NPDES permitting authority with the blanket coverage by the storm water prefer, however, to create a seamless discretion to waive the otherwise program with no unregulated ‘‘donut program that does not create donut applicable requirements of a regulated holes.’’ small municipal separate storm sewer iii. Rationale for Using Urbanized holes as this suggestion would do, but system serving less than 1,000 people Areas. EPA proposes using urbanized rather includes all of the municipal where assessments of local conditions areas to automatically designate separate storm sewer systems within the and watersheds warrant such a waiver. regulated small municipal separate urbanized area. EPA is attempting to storm sewer systems on a nationwide eliminate the existence of donut hole Note that even if a regulated small basis for several reasons: (1) studies and areas because municipal separate storm municipal separate storm sewer system data show a high correlation between sewer system discharge sources within had requirements waived, it could degree of development/urbanization and them could contribute to water quality subsequently be brought back into the adverse impacts on receiving waters due impairment and could adversely affect program if circumstances change. See to storm water (U.S. EPA, 1983; Driver the storm water management efforts of Section II.G, NPDES Permitting et al., 1985; Pitt, R.E. 1991. ‘‘Biological the neighboring regulated communities. Authority’s Role for the CWA section Effects of Urban Runoff Discharges.’’ Furthermore, as noted previously, 402(p)(6) Municipal Program, for more Presented at the Engineering including the entire urbanized portion details on this process. i. Combined Sewer Systems. The Foundation Conference: Urban Runoff of a county would promote partnerships definition of ‘‘municipal separate storm and Receiving Systems; An in watershed efforts to improve local sewer systems’’ does not include Interdisciplinary Analysis of Impact, water quality. Monitoring and Management, August combined sewer systems. A combined 1991. Mt. Crested Butte, CO. American b. Municipal Designation by the sewer system is a wastewater collection Society of Civil Engineers, New York. Permitting Authority system that conveys sanitary wastewater 1992.; Pitt, R.E. 1995. ‘‘Biological Effects and storm water through a single set of Today’s proposed rule would also of Urban Runoff Discharges,’’ in Storm pipes to a publicly-owned treatment water Runoff and Receiving Systems: allow NPDES permitting authorities to works (POTW) for treatment before Impact, Monitoring, and Assessment. designate areas that should be included discharging to a receiving waterbody. Lewis Publishers, New York.; Galli, J. in the storm water program as regulated During wet weather events when the 1990. Thermal Impacts Associated with small municipal separate storm sewer capacity of the combined sewer system Urbanization and Storm water systems but do not qualify under the is exceeded, the system is designed to Management Best Management regulatory ‘‘urbanized areas’’ definition. discharge, prior to the POTW, directly Practices. Prepared for the Sediment The proposed rule requires, at a into a receiving waterbody. Such an and Storm water Administration of the minimum, that a set of designation overflow is a combined sewer overflow, Maryland Department of the criteria be applied to all small or CSO. Combined sewer systems are Environment.; Klein, 1979), (2) this municipal separate storm sewer systems not subject to existing regulations for approach would target present and within a jurisdiction that includes a storm water, nor will they be subject to future growth areas as a preventative population of at least 10,000 and a today’s proposed regulations. EPA measure to help ensure water quality population density of at least 1,000. addresses combined sewer systems and protection, (3) the determination of Appendix 7 to this preamble provides a CSOs in its National Combined Sewer urbanized areas by the Bureau of the list of incorporated places and counties Overflow (CSO) Control Policy that was Census allows owners or operators of proposed to be potentially designated as issued on April 19, 1994 (59 FR 18688). small municipal separate storm sewer part of today’s proposed rule. In The CSO Control Policy contains systems to quickly determine whether addition, the owner or operator of any provisions for developing appropriate, site-specific NPDES permit they are included in the NPDES storm small municipal separate storm sewer requirements for combined sewer water program as a regulated small system may be the subject of a petition systems. CSO discharges are subject to municipal separate storm sewer system, to the NPDES permitting authority for BAT/BCT limits; municipal separate and (4) the blanket coverage within the designation. See Section II.G, NPDES urbanized area encourages the storm sewer systems are subject to MEP. Permitting Authority’s Role for the CWA watershed approach and addresses the Some municipalities are served by section 402(p)(6) Municipal Program, problem of ‘‘donut-holes,’’ where both separate storm sewer systems and for more details on the designation and unregulated areas are surrounded by combined sewer systems. If such a regulated areas. (Donut hole areas petition processes. EPA believes that the municipality is located within an present a problem due to their approach of combining nationwide and urbanized area, only the separate storm contributing uncontrolled impacts on local designation to determine sewer system within that municipality neighboring regulated communities and municipal coverage in today’s proposed would be included in the NPDES storm local waters.) rule balances the potential for water program and subject to today’s One drawback to the proposed significant impacts on water quality proposed rule. If the municipality is not approach is that it would divide some with local watershed protection and located in an urbanized area, then the counties into regulated areas and planning efforts. The Agency solicits NPDES permitting authority would have nonregulated areas. Such ‘‘split’’ comments on this approach and discretion as to whether the separate counties could have difficulty focusing possible alternatives. storm sewer system is subject to today’s Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1571 proposed rule. Under today’s proposed not want intermittent streams, seasonal causing adverse water quality impacts rule, the NPDES permitting authority wetlands, etc. to be included. However, and not contributing to pollutant loads would use the same process to designate they did not define exactly what they in the watershed. One commenter for coverage a municipal separate storm envisioned to be a ‘‘permanent water suggested the use of this approach with sewer system where the municipality is body.’’) Any person could petition the an automatic exemption based on also served by a combined sewer NPDES authority to make or verify such objective criteria, such as low system, as it would for municipalities a finding. population and proximity to waters of that are served only by a separate storm • Pollution from runoff from the local the United States. sewer system. The Agency recognizes government drainage system either EPA acknowledges that this approach that municipalities that have both directly discharges to an adjacent has advantages. It would guarantee that combined and separate storm sewer municipality covered by these the areas of most concern are regulated, systems may wish to find ways to requirements or significantly create a seamless storm water program develop a unified program to meet all contributes to the pollution from runoff without donut holes, avoid disputes wet weather requirements more that would otherwise be attributable to over designation, and promote a efficiently. EPA seeks comment on ways an adjacent municipality covered by watershed-based program because all to achieve such a unified program. these requirements. sources in a watershed would already be While EPA believes that this option in the program. In addition, its simple d. Designation Alternatives concerning aboveground/underground blanket coverage would create less Considered—Preliminary Options systems for densities of less than 1,000 confusion over whether an owner or In developing the proposed approach, persons has merit, the Storm Water operator of a municipal separate storm EPA considered several alternative Phase II FACA Subcommittee could not sewer system is in or out of the storm approaches for designation. Three of the resolve issues associated with defining water program, and the burden for primary options considered are and quantifying the different types of exclusion would be on the owner or discussed below, in no particular order. ditches and drainage systems on a operator of the municipal separate EPA seeks comment on all three of these nationwide basis. The work group sewer system, not the permitting options and welcomes ideas for other assumed that aboveground systems authority. Overall, this option best alternative options for determining the would consist primarily of vegetated addresses the cumulative impact of all definition of a regulated small ditches. However, enough data are not activities within a watershed that create municipal separate storm sewer system. available to either prove or disprove this environmental problems. By including i. Designation Option 1. One option assumption. The work group found only particular sources within a EPA considered was the proposal vegetated ditches highly desirable and watershed, as is the case with the other suggested by the Storm Water Phase II worthy of exemption because of the options, the potential environmental FACA Subcommittee’s Municipal De benefits of natural management of storm benefits of the storm water program Minimis Work Group. Under this water that they can provide. The could be limited. option, all municipal separate storm pervious and contoured surface of Although this option might sewer systems would be included in the vegetated ditches allows the water to appropriately address issues of fairness NPDES permit program, unless the percolate, resulting in an overall and simplicity, it fails to target the areas system is aboveground, or underground decrease in velocity and volume of flow of greatest concern (i.e., areas causing and serving an area with a population and pollutant levels. However, these significant water quality impacts) and density of less than 1,000. Local systems have variable removal instead would regulate all areas governments with no underground efficiencies for pollutants and can regardless of impacts, unless an storm drain systems would be excluded, potentially contribute additional exemption was approved. This unless the NPDES permitting authority pollutants to storm water runoff. Due to approach, by including a universe of determined that storm drainage from the variability of the types of approximately 19,289 incorporated aboveground (e.g., open drainage aboveground system surfaces and the places and 17,796 minor civil divisions ditches) is within the control of the lack of data, EPA chose not to propose located in 3,141 counties, in addition to local government and that pollution this option as its own. In addition, EPA Tribal lands and Territories, could from runoff from such drains is causing had significant concerns about the regulate many more entities than the impairment to beneficial uses or number of smaller municipalities that current proposal, resulting in higher exceedances of water quality standards would be permitted under such an costs than today’s proposal for all in a permanent water body. This option approach, even though they might not involved. The exemption process, would also exclude local governments contribute to significant water quality which could apply to thousands of with underground storm drains if they impacts. Under the approach selected municipalities, would require them to had a density of less than 1,000 persons/ for today’s proposed rule, EPA believes spend valuable time and resources square mile (or some other criteria, such that only those municipalities likely to trying to prove that they have little or as building starts, rainfall, or percentage contribute to significant water quality no impact on water quality, while the of imperviousness, if such parameters impacts would be designated into the permitting authority would be saddled are proven better indicators of storm storm water program. with the additional burden of water pollution), unless: ii. Designation Option 2. Another processing and evaluating such • The NPDES authority finds that option, which was suggested by several requests. It may be the case that the runoff from the local government members of the Storm Water Phase II administrative burden for a storm water drainage system is contributing to the FACA Subcommittee, would require all program of this size, and the potential impairment of beneficial uses or small municipal separate storm sewer overregulation, would not justify the exceedances of water quality standards systems to be regulated under the full coverage it would provide. in a permanent waterbody. (The NPDES program for storm water and to Furthermore, it would also be difficult Municipal De Minimis Work Group implement the six minimum measures to justify an automatic exemption based purposely used the term ‘‘permanent as described in today’s approach, unless solely on the criteria of population size water body,’’ and not the term ‘‘waters the owner or operator of the system and proximity to waters of the United of the United States,’’ because they did could prove that the system is not States. Total population (as opposed to 1572 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules population density) is not a good non-storm water discharges into storm proposing simplified individual permit measure of storm water impacts because sewers and storm water runoff from application requirements at § 122.33. it lacks an indication of where and how growth, development, and significant Under the simplified individual permit the population is distributed, both of redevelopment activities. application requirements, the owner or which are significant factors addressed By focusing on census-designated operator would submit an application to in today’s proposal. For example, an urbanized areas, many of the sources of the NPDES permitting authority that area with high population could be less greatest concern would be addressed, includes the information required under urbanized with fewer impacts on water while also providing a clear definition § 122.21(f), an estimate of square quality than a place with lower of who is included in the storm water mileage served by the separate storm population due to the size of the area program. However, the tiered permitting sewer system, and any additional involved in each. EPA anticipates requirements of this approach could information that the NPDES permitting extreme difficulty in determining and create unnecessary confusion. EPA authority requests. Consistent with justifying a particular population would not want to require regulated CWA section 308 and analogous State threshold without also considering small municipal separate storm sewer law, the permitting authority could other factors that would help to both systems in urbanized areas with a request any additional information to account for the variability of local medium or large municipal separate gain a better understanding of the conditions and indicate whether or not storm sewer system to do more than system and the areas draining into the there are significant water quality those in urbanized areas without a system. impacts. Furthermore, a population medium or large municipal separate Today’s proposal also would allow an storm sewer system. Rather, EPA threshold would still result in donut owner or operator of a regulated small envisions progress toward a seamless, holes. Similar problems could be municipal separate storm sewer system unified, and comprehensive NPDES associated with the second criterion of to join as a co-permittee in an existing storm water program with equivalent ‘‘proximity to waters of the United NPDES permit issued to an adjoining program requirements as the best States.’’ It is an important consideration medium or large municipal separate approach. If this alternative option was but not much more telling than total storm sewer system or designated adopted, three varying levels of population due to the variety of local source under the existing storm water requirements (the existing requirements conditions that could or could not make program through a modification of that plus two tiers for small municipal this criterion a significant factor in the municipal separate storm sewer separate sewer systems) would determination of real or potential water system’s permit. This co-permittee quality impacts. Therefore, even the eventually need to be unified instead of just two, as found under today’s provision would only apply if agreed to tandem use of these two criteria could by all co-permittees. Under a co- lack enough information to make an proposal. Although primarily concerned with growth associated with urbanized permittee arrangement, the owner or informed and justifiable decision on an operator of the regulated small system exemption. For the reasons discussed areas, this approach is also limited by its reliance on non-NPDES programs for would need to comply with the above, EPA chose not to propose this applicable requirements of § 122.26 and option. addressing sources beyond urbanized areas. Environmental and municipal the terms and conditions of the iii. Designation Option 3. To satisfy representatives on the Storm Water applicable permit, but would not be CWA section 402(p)(5)(C), EPA Phase II FACA Subcommittee agreed required to fulfill all the permit recommended the approach outlined in that any sources that are significant application requirements applicable to President Clinton’s Clean Water contributors of pollutants should be medium and large systems and permit Initiative. This approach was similar to considered for regulation directly under condition requirements applicable to today’s proposed approach in that the an NPDES permit, including those regulated small systems. Specifically, NPDES permitting authority would outside of urbanized areas. For these the regulated small system owner or issue system-wide NPDES permits for reasons, EPA did not present this option operator would not be required to all municipal separate storm sewer as the lead option. comply with the permit condition systems in census-designated urbanized requirements of § 122.34 of today’s areas. This option would require storm 3. Municipal Permit Requirements proposal or with the application water management programs for EPA is proposing that all owners or requirements of § 122.26(d)(1)(iii) (Part municipal separate storm sewer systems operators of regulated small municipal 1 source identification), § 122.26 in the 138 urbanized areas in which a separate storm sewer systems, as (d)(1)(iv) (Part 1 discharge medium or large municipal separate defined at § 122.32, must seek coverage characterization), and § 122.26(d)(2)(iii) sewer system is located. At a minimum, under an NPDES permit. EPA intends (Part 2 discharge characterization data). the programs would address non-storm that the vast majority of discharges from Furthermore, the owner or operator of water discharges into storm sewers and these sources would be authorized the regulated small system could satisfy storm water runoff from growth and under general permits issued by the the requirements in § 122.26(d)(1)(v) development and significant NPDES permitting authority. These (Part 1 management programs) and redevelopment. NPDES permitting NPDES general permits would provide § 122.26(d)(2)(iv) (Part 2 proposed authorities would be encouraged to specific instructions for how to seek management program) by referring to implement watershed approaches and coverage, including application the adjoining municipality’s existing more comprehensive program requirements. Typically, such plan. An owner or operator pursuing requirements where necessary and application requirements would be this option would need to describe in appropriate. In the remaining 267 satisfied by the submission of an NOI to the permit modification request how the census-designated urbanized areas be covered by the general permit. adjoining municipality’s storm water (containing only small municipal For cases in which an NPDES general program addresses or would need to be separate storm sewer systems), permit is not available or the NPDES supplemented in order to adequately municipal storm water management permitting authority requests that an address discharges from the municipal programs would be less stringent and owner or operator be covered under an separate storm sewer system. The required to focus only on controlling individual NPDES permit, EPA is request would also need to explain the Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1573 role of the owner or operator in municipal separate storm sewer system proposal addresses this concern, as coordinating local storm water activities implementing BMPs to satisfy the six discussed above. and describe the resources available to minimum control measures would meet As part of this program, the owner or accomplish the plan. applicable water quality standards, operator would be required to identify EPA believes that this approach because, though uncontrolled urban and submit to the NPDES permitting would support the goal of an integrated storm water continues to present a authority, either in an NOI to be covered and coordinated national storm water significant water quality problem, the under a general permit or in an program. Regulated small system six measures represent a significant individual permit application, the BMPs owners or operators could take level of control if properly to be implemented and the measurable advantage of existing programs to ease implemented. EPA believes that the goals for each of the minimum control the burden of creating their own from implementation of any controls, but measures discussed in Section II.H.3.a., scratch. The proposal would allow them particularly the six minimum measures Program Requirements—Minimum to conduct activities that are identified in today’s proposal, should Control Measures. coordinated on a regional basis. For The term ‘‘measurable goals’’ is significantly reduce pollutants in urban medium and large system owners or derived from negotiations among FACA storm water compared to existing levels. operators, this approach would promote representatives. Section 402(p)(6) of the If after implementing the six minimum the use of regional and watershed-based CWA states that the program to regulate planning as an implementation control measures there is still a water additional storm water discharges may framework for the storm water program quality problem associated with include performance standards, and would create opportunities for discharges from the municipal separate guidelines, guidance, and management sharing the resource and cost burden of storm sewer system, the municipality practices as appropriate. Discussions the program with participating entities. would need to expand or better tailor its among FACA representatives resulted in EPA is particularly interested in BMPs within the scope of the six the use of the term ‘‘measurable goals.’’ comments regarding the actual minimum control measures for each On the one hand, environmental implementation of this application subsequent permit. EPA envisions that representatives wanted to include provision. For instance, whether the this process would take two to three performance standards as conditions of provision contains the appropriate permit terms. During this time, EPA NPDES permits as a means of providing subsections of § 122.26(d) and whether would revisit the regulations for the for specific, tangible activities to be the process as set forth creates an municipal storm water program. If undertaken within the municipal storm incentive to use this alternative for additional specific measures to protect water management program. On the permit coverage. water quality were imposed, they would other hand, municipal representatives In today’s notice, EPA is proposing likely be the result of an assessment opposed the inclusion of performance certain minimum control measures for based on TMDLs, or the equivalent of standards, asserting that they were all NPDES permits issued to regulated TMDLs, where the proper allocations counter productive because they could small municipal separate storm sewer would be made to all contributing encourage an owner or operator of a systems, with the exception of joint co- sources. EPA believes that the municipal separate storm sewer system permittees, as noted previously, to municipality’s additional requirements, to avoid risks associated with setting ensure equity and consistency among if any, should be guided by its equitable any standard that it felt it could not owners or operators. Any NPDES permit share based on a variety of achieve with certainty. Out of this issued under this program would, at a considerations, such as cost discussion, a compromise was reached minimum, require the owner or operator effectiveness, proportionate in the use of the term ‘‘measurable to develop, implement, and enforce a contribution of pollutants, and ability to goals’’ and the process embodied in the storm water management program reasonably assume wasteload proposed rule. This process sets the designed to reduce the discharge of reductions. Narrative effluent issuance of a menu of regionally- pollutants from a regulated system to limitations requiring implementation of appropriate BMPs as the conditions the maximum extent practicable (MEP) BMPs are generally the most appropriate precedent to ‘‘measurable goals’’ and protect water quality (see MEP form of effluent limitations when becoming permit conditions. Some discussion in the following section). designed to satisfy technology storm water management plans Narrative effluent limitations requiring requirements, including reductions of developed to meet requirements of the implementation of BMPs would pollutants to the maximum extent existing storm water program include generally be considered the most practicable, and water quality-based provisions similar to the concept of appropriate form of effluent limitations requirements of the Clean Water Act. ‘‘measurable goals’’ proposed today. when designed to satisfy technology See Section II.L, Water Quality Issues, Specifically, some municipal storm requirements, including reductions of for further discussion of this approach water management plans include, for pollutants to the maximum extent to permitting, consistent with EPA’s example, inspection of or cleaning of a practicable, and water quality-based fixed number of storm drain inlets per interim permitting guidance. requirements of the CWA. Examples of year and a survey of all municipal right- narrative effluent limitations include no The municipal caucus was concerned of-ways to identify illicit connections to floatables in storm water discharges and that a requirement to meet water quality the municipal separate storm sewer no visible sheen on waterbodies. standards would be interpreted by a system. Currently, existing permit In the first two to three rounds of permitting authority as a requirement to application regulations for municipal permit issuance, EPA envisions that include water quality-based numeric separate storm sewer systems require implementation of the minimum limitations in municipal storm water identification and implementation of measures and BMP-based program permits. Municipal representatives BMPS and not necessarily measurable would be the extent of the storm water believe that in many cases it would not goals, much less performance standards. permit requirements for the large be possible to develop a storm water Qualifying State, Tribal, or local majority of regulated small municipal program that would result in the programs that meet the requirements of separate storm sewer systems. EPA attainment of numeric limitations, one or more of the minimum control assumes that a regulated small except at considerable cost. Today’s measures could be incorporated by 1574 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules reference into the NPDES municipal that the identified BMPs and is determined on a permit-by-permit separate storm sewer system general measurable goals would meet the MEP basis. permit. For more information regarding requirement and, if necessary, could ask a. Program Requirements—Minimum the general permit NOI or individual the permittee to revise the mix of BMPs Control Measures permit application, see Section II.H.3.b., to better reflect the requirement. A Application Requirements. similar procedure could be established i. Public Education and Outreach on for a small municipal separate storm Storm Water Impacts. EPA is proposing Maximum Extent Practicable sewer system that is a co-permittee with that any NPDES permit issued to Maximum extent practicable (MEP) is a municipal separate storm sewer regulated small municipal separate a technology-based control standard system that is already regulated in an storm sewer systems would require the currently used in the existing municipal individual NPDES permit. This process owner or operator to implement a public storm water program against which would be followed by actual program education program to distribute permit writers and permittees assess implementation by the municipality. educational materials to the community whether or not an adequate level of Under the proposed approach, (or conduct equivalent outreach control has been proposed in the storm implementation of BMPs consistent activities) about the impacts of storm water management program. The Urban with storm water management program water discharges on waterbodies and the Wet Weather Flows Federal Advisory requirements at § 122.34 and permit steps to reduce storm water pollution. Committee recommended to EPA that provisions at § 122.33 would constitute The State, EPA, environmental MEP be applied to all permits issued to compliance with the standard of organizations or other public interest or municipal separate storm sewer ‘‘reducing pollutants to the maximum trade organizations could provide systems, including those proposed to be extent practicable.’’ materials, subject to the approval of the regulated today, to achieve greater The pollutant reductions that owner or operator of the municipal cooperation and consistency, reduce represent MEP may be different for each system. The materials or outreach conflicts and confusion, and improve municipality, given the unique storm programs should inform individuals and economies of scale in the efforts of water concerns that may exist and the households about steps that can be municipalities to manage storm water differing possible remedies. Therefore, taken to reduce storm water pollution, pollution. each permittee would determine the such as ensuring proper septic system In today’s proposal, NPDES permits specific details in each of the six maintenance, limiting the use and issued for regulated small municipal minimum control measures that runoff of garden chemicals to separate storm sewer systems, whether represent MEP through an evaluative appropriate amounts, properly in the form of general or individual process. In this process, permittees and disposing of used motor oil or permits, would require the owner or permit writers would evaluate the household hazardous wastes, and operator to develop, implement, and proposed storm water management becoming involved in local stream enforce a storm water management controls to determine whether reduction restoration activities. EPA would program designed to reduce the of pollutants to the MEP could be encourage individuals to participate in discharge of pollutants to the maximum achieved with the identified BMPs. EPA activities coordinated by youth service extent practicable. The permittee would envisions that this evaluative process organizations, conservation corps, or be expected to reduce the pollutants to would consider such factors as other citizen groups. Other possible the MEP through implementation of the conditions of receiving waters, specific outreach materials could encourage following minimum control measures: local concerns, and other aspects citizens to participate in the municipal Public education and outreach on storm included in a comprehensive watershed program by performing such services as water impacts, public involvement/ plan. The FACA Committee is currently roadside litter pickup and storm drain participation, illicit discharge detection working to identify evaluative MEP stenciling or highlight the potential and elimination, construction site storm criteria. Suggestions have included: (1) public health risks to children if water runoff control, post-construction The effectiveness to address the exposed to pollution when playing near storm water management in new pollutant(s) of concern, (2) public storm drains. In addition, some of the development and redevelopment, and acceptance, (3) cost, (4) technical materials or outreach programs should pollution prevention/good feasibility, and (5) compliance with be directed toward targeted groups of housekeeping for municipal operations. Federal, State and local laws and commercial, industrial, and institutional Under today’s proposed approach, regulations. entities likely to have significant storm MEP would be determined through a Prior to permit issuance, EPA plans to water impacts to explain their impacts series of steps associated with develop additional policy and technical on storm water pollution (e.g., identification and implementation of guidance on the process of evaluating information to restaurants on the impact the minimum control measures. In MEP for municipal separate storm sewer of grease clogging storm drains and to issuing the general permit, for example, system permits based upon the garages on the impacts of used oil the NPDES permitting authority would recommendations received from the discharges). The owner or operator is establish requirements for each of the FACA Committee. This guidance would encouraged to tailor the outreach minimum control measures and require be applicable to both medium and large program to address the viewpoints and municipalities to identify the BMPs to systems (addressed by existing concerns of all communities, be performed and measurable goals to requirements), as well as those particularly minority and disadvantaged be achieved. Permittees would then be addressed by today’s proposal. It is communities, as well as children. required to identify the BMPs and important to note that States EPA believes that as the public gains associated measurable goals for implementing their own NPDES a greater understanding of the addressing each of the minimum control programs may develop more stringent municipally developed program, the measures in their NOIs. requirements than those proposed in municipality is likely to gain more Upon receipt of the NOI from a today’s rule. In any event, additional support for the program (including municipality, the NPDES permitting elaboration of the MEP determination funding initiatives). In addition, authority would then have the process is not necessary prior to compliance with the program would opportunity to review the NOI to verify issuance of the final rule, because MEP probably be greater if the public Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1575 understands the personal to educate other individuals about the 1993. Investigation of Inappropriate responsibilities expected of them and program, assisting in program Pollutant Entries Into Storm Drainage others. Well-informed citizens could coordination with other pre-existing Systems—A User’s Guide. Washington, even act as formal or informal educators programs, or participating in volunteer D.C. EPA 600/R–92/238.) A significant to further disseminate information and monitoring efforts. The public portion of these dry weather flows gather support for the program, thus participation process should engage all results from illicit and/or inappropriate easing the burden on the municipalities economic and ethnic groups. discharges and connections to the to perform all educational activities. Early and frequent public municipal separate storm sewer system. The public outreach provision has been involvement can shorten Illicit discharges enter the system tailored to respond to specific concerns implementation schedules and broaden through either direct connections (e.g., raised in the course of the FACA public support for a program. One wastewater piping either mistakenly or process. For example, municipal challenge associated with public deliberately connected to the storm representatives advocated the inclusion involvement is addressing conflicting drains) or indirect connections (e.g., of language that would clarify that use viewpoints. Another challenge is in infiltration into the storm drain system of educational materials from outside engaging the public in the public or spills collected by drain inlets). groups, such as trade associations and meeting and program design process. Under the existing NPDES program for environmental groups, would be subject Nevertheless, EPA strongly believes that storm water, permits for large and to the approval of the municipality. the overall benefits of an aggressive and medium municipal separate storm Also, the above-referenced language inclusive program, including sewer systems are to include an addressing environmental justice involvement of low-income and effective prohibition against non-storm concerns was in response to input from minority communities, is an essential water discharges into their storm sewers Storm Water Phase II FACA component of a State, Tribal, Federal, (see CWA section 402(p)(3)(B)(ii)). Subcommittee members. and municipal storm water management Further, EPA believes that in Municipalities would be encouraged program. implementing municipal storm water to enter into partnerships with their Public participation ensures a more management plans under these permits, States in fulfilling the public education successful storm water program by large and medium municipalities requirement. It may be much more cost- providing valuable expertise and a generally found their illicit discharge effective to utilize a State education conduit to other programs and detection and elimination programs to program instead of numerous governments, which would be of be cost-effective. municipalities developing their own. primary importance if the municipal Municipalities would also be storm water program is to be In today’s proposal, any NPDES encouraged to work with other implemented on a watershed basis. The permit issued to an owner or operator of organizations (e.g., environmental and public could act as volunteers in all a regulated small municipal separate nonprofit groups and industry) that aspects of the program, thus saving storm sewer system would, at a might be able to assist in fulfilling this municipal resources. Another minimum, require that owner or requirement. Many of these kinds of recognized benefit is that members of operator to develop and implement an organizations already have educational the public are less likely to raise legal illicit discharge detection and materials, and the groups could work challenges to a municipality’s storm elimination program. Inclusion of this together to educate the public. water program if they have been measure for municipal storm water EPA requests comment on the involved in the decisionmaking process programs for regulated small appropriateness of the specified and program development and, municipalities would be consistent with requirements for public education and therefore, are partially responsible for the ‘‘effective prohibition’’ requirement outreach. the program themselves. Section II.K. for large and medium municipal ii. Public Involvement/Participation. provides further discussion on public separate storm sewer systems. Under Public involvement is an integral part of involvement. such a program, the owner or operator the municipal storm water program. The EPA requests comment on the would be required to demonstrate Agency believes that the public can appropriateness of the specified awareness of the system using maps or provide valuable input and assistance to requirements for public involvement/ other existing documents. The owner or the municipality’s storm water program. participation. operator would also be required to The Agency, therefore, is proposing that iii. Illicit Discharge Detection and develop (if not already completed) a the public play an active role in the Elimination. Discharges from storm storm sewer system map (or equivalent) development and implementation of the water drainage systems often include showing the location of major pipes, municipality’s storm water management wastes and wastewater from non-storm outfalls, and topography. The map program. water sources. EPA’s Nationwide Urban should identify areas of concentrated The municipal storm water Runoff Program (NURP) indicated that activities likely to be a source of storm management program would need to many storm water outfalls still water pollution, if the data already exist. include a public participation program discharge during substantial dry To ensure the effectiveness of this that complies with applicable State and periods. Pollutant levels in these dry measure, the owner or operator would local public notice requirements. The weather flows were shown to be high be required to effectively prohibit public should participate as a partner in enough to significantly degrade through ordinance, order, or similar developing, implementing, and receiving water quality. Results from a means (for nongovernmental owners or reviewing the storm water management 1987 study conducted in Sacramento, operators of municipal separate storm program. Opportunities for members of California, revealed that slightly less sewer systems), to the extent allowable the public to participate in program than one-half of the water discharged under State or Tribal law, illicit development and implementation could from a municipal separate storm sewer discharges into the separate storm sewer include serving as citizen system was not directly attributable to system and implement appropriate representatives on a local storm water precipitation runoff (U.S. enforcement procedures and actions as management panel, attending public Environmental Protection Agency, needed. This measure would also hearings, working as citizen volunteers Office of Research and Development. require the owner or operator to develop 1576 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules and implement a plan to detect and The existing storm water permit ordinance or other regulatory address illicit discharges (including application requirements at § 122.26(d), mechanism that controls erosion and illegal dumping) to the system. Finally, contain two sets of application sediment to the maximum extent the measure would require the owner or requirements regarding illicit discharges practicable and allowable under State, operator to inform public employees, that EPA does not propose to require of Tribal, or local law. The program also businesses, and the general public of regulated small municipal separate would need to ensure control of other hazards associated with illegal storm sewer systems. Specifically, EPA waste at construction sites that could discharges and improper disposal of does not propose to require regulated adversely impact water quality. This waste. These informational actions small system owners or operators to waste could include discarded building could include storm drain stenciling; a describe procedures to prevent, contain, materials, concrete truck washout, and program to promote, publicize, and and respond to spills that could sanitary waste. The program would facilitate public reporting of illicit discharge into the municipal separate need to include, at a minimum, connections or discharges; and storm sewer and controls to limit requirements for construction site distribution of outreach materials. infiltration of seepage from municipal owners or operators to implement Recycling and other public outreach sanitary sewers to municipal separate appropriate BMPs, such as silt fences, programs could be developed to address storm sewer systems where necessary. temporary detention ponds and hay potential sources of illicit discharges, This is pursuant to comments received bales; provisions for pre-construction including used motor oil, antifreeze, from municipal representatives on the review of site management plans; pesticides, herbicides, and fertilizers. Storm Water Phase II FACA procedures for receipt and consideration EPA seeks comment regarding the Subcommittee. EPA anticipates that of information provided by the public; prohibition and enforcement provision these procedures are already effectuated regular inspections during construction; for this minimum measure and through the implementation of existing and penalties to ensure compliance. specifically requests comment regarding municipal programs, such as emergency Today’s proposal includes the the implications of specifying that the response teams and operation of the program requirement to establish owner or operator would have to wastewater treatment system. procedures for the receipt and implement the appropriate prohibition EPA requests comment on the consideration of information provided and enforcement procedures ‘‘to the appropriateness of the specified by the public in response to stakeholder extent allowable under State or Tribal requirements for illicit discharge concerns regarding public involvement law.’’ Concerns have been raised that by detection and elimination. and public access to information. This qualifying prohibition and enforcement iv. Construction Site Storm Water requirement further reinforces the procedures in this manner, the owner or Runoff Control. Over a short period of public participation component of the operator could altogether ignore this time, storm water discharges from municipal program by establishing a minimum measure where appropriate construction site activity can contribute formal process for considering and authority did not exist. Municipalities more pollutants, including sediment, to responding to public inquiries regarding have pointed out, however, that they a receiving stream than had been construction activities. Some cannot legally exceed the authority deposited over several decades. Storm stakeholders have expressed concern granted them under State law, which water runoff from construction sites can regarding the proposed site management varies considerably from one state to include pollutants other than sediment, plan provision, which would establish another. such as phosphorus and nitrogen from requirements for review but not for The illicit discharge detection and fertilizer, pesticides, petroleum approval of such plans. EPA requests elimination program would not derivatives, construction chemicals, and comment on expanding this provision to necessarily need to address all types of solid wastes that may become mobilized require both review and approval of non-storm water discharges. As with the when land surfaces are disturbed. construction site storm water plans. existing municipal application Generally, properly implemented EPA also invites comment on the basic requirements, the following categories construction site ordinances are program components. of non-storm water discharges or flows effective in reducing these pollutants. In In conjunction with these would only need to be addressed in the many areas, however, the effectiveness requirements, EPA is also proposing to municipal storm water program where of ordinances in reducing pollutants is add § 122.44(s) which would allow the such discharges are identified as limited due to inadequate enforcement NPDES permit issued to regulated significant contributors of pollutants: or incomplete compliance with such construction sites (described under water line flushing, landscape irrigation, local ordinances by construction site § 122.26(b)(15)(i)) to incorporate by diverted stream flows, rising ground discharges of storm water. Not all reference qualifying State, Tribal, or waters, uncontaminated ground water construction site owners or operators local erosion and sediment control infiltration (as defined at 40 CFR properly maintain BMPs. For example, program requirements. A qualifying 35.2005(20)) to separate storm sewers, sediment traps and sediment basins may State, Tribal, or local erosion and uncontaminated pumped ground water, fill up and silt fencing may break or be sediment control program would be one discharges from potable water sources, overtopped. that meets the requirements of a foundation drains, air conditioning Today’s proposed rule would require municipal NPDES separate storm sewer condensation, irrigation water, springs, owners or operators of regulated small permit or a program otherwise approved water from crawl space pumps, footing municipal separate storm sewer systems by the NPDES permitting authority for drains, lawn watering, individual to develop, implement, and enforce a programs operating outside geographic residential car washing, flows from pollutant control program to reduce boundaries of a permitted municipal riparian habitats and wetlands, pollutants in storm water runoff from separate storm sewer system. The dechlorinated swimming pool construction activities that result in NPDES permitting authority’s approval discharges, and street wash water. The land disturbance of 1 or more acres to of such programs would need to assure program should address discharges or their municipal separate storm sewer compliance with the minimum flows from fire fighting where such systems as a part of their storm water construction site control program discharges or flows are identified as management program. The owner or requirements described above. The significant sources of pollutants. operator would need to use an permitting authority could also include, Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1577 by reference in a general permit, those owners/operators comply with the elements to be implemented by the State, Tribal, or local requirements that requirements of an NPDES permit. owner or operators of the municipal meet the standard of best available Finally, EPA contemplates that there separate storm sewer system. The five technology (BAT) for those construction would be some permit provisions, such principles were use of good site site storm water discharges identified at as requirements for site management planning, minimization of soil § 122.26(b)(14)(x) (i.e., sites disturbing plans, that are not typically required by movement, capture of sediment to the more than 5 acres of land), including local erosion and sediment control greatest degree possible, good clearing, grading, and excavation programs which would be required as housekeeping practices, and mitigation activities. As a result of this provision, one of the requirements of a of the impacts of post-construction such local requirements would, in construction general permit. Therefore, storm water discharges. The eight effect, provide the construction site the Agency believes that the proposed elements include a program description; erosion and sediment control dual approach of local controls and coordination mechanisms with existing requirements of the NPDES permit. NPDES permitting most effectively programs; requirements for Construction site owners and operators ensures implementation of appropriate nonstructural and structural BMPs; would be subject to only one set of storm water control measures at priorities for site inspections; erosion and sediment control construction sites while minimizing educational and training measures; requirements, thereby eliminating redundant controls. EPA solicits exemption of some construction duplication. At the same time, comment on this ‘‘incorporation by activities due to limited impact; noncompliance with the referenced reference’’ approach. incentives, awards, or streamlining local requirements would be considered Today’s proposal for permit mechanisms available to developers; noncompliance with the NPDES permit requirements for regulated construction and description of staff and resources. and would be federally enforceable. sites (described under § 122.26(b)(15)(i)) Under this approach, any local program EPA developed the ‘‘incorporation by would include developing a storm water that incorporated these principles and reference’’ approach, which is similar to pollution prevention plan (SWPPP). elements into its storm water program implementation efforts designed by the However, the current proposal for the would have been considered a State of Michigan, to avoid duplication municipal program minimum measure ‘‘qualifying’’ local program that met of effort in the development of for construction site storm water control Federal requirements. The elements regulatory requirements by different runoff does not contain an equivalent suggested were modified from current levels of government. Michigan relies on requirement—leaving a gap between the requirements found at 40 CFR localities to develop substantive two areas of the proposal that address 122.26(d)(2)(iv)(D). controls for storm water discharges regulation of construction. EPA asks for After in-depth discussion with all associated with construction activities comment as to the effect of this stakeholders, many of these elements on a localized basis. The State agency, potential regulatory gap and whether were considered to be more appropriate as the NPDES permitting authority, the municipal program for construction as guidance than as regulatory receives an NOI (termed ‘‘notice of should be made to include a requirements for small municipal coverage’’ by Michigan) under the requirement for developing a SWPPP. systems. Some stakeholders expressed general permit and tracks and exercises Specifically, EPA asks for comment on concerns about the applicability and oversight, as appropriate, over the the effect this may have on the interpretation of the five control activity causing the storm water applicability of the provision allowing principles and eight program elements discharge. Michigan’s goal under these for an NPDES permit to incorporate by on a national level, specifically that a procedures is to utilize the existing reference a qualifying local erosion and single, national specification would be erosion and sediment control program sediment control program. Currently, unworkable. Therefore, EPA is infrastructure authorized under State the proposal defines a local program as proposing regulatory text intended to law for storm water discharge ‘‘qualifying’’ if it meets the minimum build on the fundamental aspects of the regulation. (See U.S. Environmental program requirements established in existing NPDES program for municipal Protection Agency, Office of Water. § 122.34(b)(4). EPA is concerned as to storm water, while streamlining and January 7, 1994. Memo: From Michael whether this raises a potential improving certain aspects of the B. Cook, Director OWEC, to Water inequitable regulatory scheme where program applicable to owners or Management Division Directors, certain construction sites would need to operators of regulated small municipal Regarding the ‘‘Approach Taken by be covered under a SWPPP because they separate storm sewer systems. Michigan to Regulate Storm Water are outside a covered municipality EPA requests comment on the Discharges from Construction while nearby construction sites would appropriateness of the specified Activities.’’) not need SWPPP coverage because they requirements for construction site EPA acknowledges that many owners are within a municipality that has a control. or operators of small municipal separate construction program that meets v. Post-Construction Storm Water storm sewer systems already administer § 122.34(b)(4) requirements. EPA Management in New Development and local erosion and sediment control intends to facilitate the broadest Redevelopment. The Nationwide Urban programs. EPA believes that today’s application of the § 122.44(s) provision Runoff Program study and more recent proposed approach would recognize a to avoid duplication of programmatic investigations indicate that prior municipality’s flexibility in developing requirements and paperwork planning and designing for the practical procedures to control redundancy and seeks comment on a minimization of pollutants in storm construction site discharges from within means to best achieve this goal. water discharges is the most cost- its jurisdiction, while still requiring an In discussions with the Storm Water effective approach to storm water NPDES permit to ensure an appropriate Phase II FACA Subcommittee, EPA quality management. Reducing the base level of water quality protection. considered structuring the permit discharge of pollutants after the Moreover, the Agency also believes that requirements for the municipal discharge enters a storm sewer system is there is an appropriate role for the construction program around five often more expensive and less efficient permitting authority as well as citizens control principles that were to underlie than preventing or reducing the groups in ensuring that construction site the development of eight program discharge of pollutants at the source. 1578 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

Increased human activity associated proposes to recommend that controls to reduce floatables and other with development often results in municipalities establish requirements pollutants discharged from the separate increased discharges of pollutants. In for the use of cost-effective BMPs that storm sewers; (2) controls for reducing addition, sediment and debris transport minimize water quality impacts and or eliminating the discharge of and deposition can directly impair attempt to maintain pre-development pollutants from streets, roads, highways, aquatic life. If the involved parties runoff conditions. In other words, post- municipal parking lots, maintenance consider water quality impacts from the development conditions should not be and storage yards, and waste transfer beginning stages of projects, new different from pre-development stations—including programs that development and possibly conditions in a way that adversely promote recycling and pesticide use redevelopment allow opportunities for affects water quality. The municipal minimization; (3) procedures for the more water quality sensitive projects. program should include structural and/ proper disposal of waste removed from For example, minimization of or non-structural BMPs. EPA encourages the separate storm sewer systems and impervious areas, maintenance or locally-based watershed planning and areas listed above in (2), including restoration of natural infiltration, the use of preventative measures, dredge spoil, accumulated sediments, wetland protection, use of vegetated including non-structural BMPs, which floatables, and other debris; and (4) drainage ways, and use of riparian are generally lower in cost than ways to ensure that new flood buffers have been shown to reduce structural BMPs, to minimize water management projects assess the impacts pollutant loadings in storm water runoff quality impacts. Non-structural BMPs on water quality and examine existing from developed areas. EPA encourages are preventative actions that involve projects for incorporation of additional local governments to identify specific management and source controls. water quality protection devices or problem areas within their jurisdictions Examples of non-structural BMPs practices. In general, the requirement to and initiate innovative solutions and include policies and ordinances that develop and implement an operation designs to focus attention on those areas result in protection of natural resources and maintenance program, including through local planning. and prevention of runoff. These include local government employee training, is In today’s rule, EPA is proposing that requirements to limit growth to meant to ensure that municipal owners or operators of regulated small identified areas, protect sensitive areas activities are performed in the most municipal separate storm sewer systems such as wetlands and riparian areas, appropriate way to minimize develop, implement, and enforce a minimize imperviousness, maintain contamination of storm water program that includes a plan to address open space, and minimize disturbance discharges, rather than requiring the storm water runoff from new of soils and vegetation. municipality to undertake new development and redevelopment Examples of structural BMPs include activities. projects to their municipal separate storage practices (wet ponds and Proper operation and maintenance of storm sewer systems using site- extended-detention outlet structures), the municipal separate storm sewer appropriate and cost-effective structural filtration practices (grassed swales, sand system and the storm water pollution and non-structural BMPs, as filters and filter strips), and infiltration control structures is essential to the appropriate. The program would need to practices (infiltration basins, infiltration success of the management program ensure that controls are in place that trenches, and porous pavement). System overall. The effective performance of would prevent or minimize water owners or operators have significant this program measure would hinge on quality impacts. The program should flexibility both to develop this measure ensure adequate long-term operation as appropriate to address local concerns the proper maintenance of the BMPs and maintenance of BMPs. EPA would and to apply new control technologies utilized. Without proper maintenance, address questions regarding as they become available. Since storm BMP performance declines significantly responsibility for long-term BMP water technologies are constantly being over time, with rates of decline varying operation and maintenance in guidance improved, EPA recommends that by BMP type and site conditions. materials. EPA intends the term municipal requirements be responsive Additionally, BMP neglect may produce ‘‘redevelopment’’ to refer to alterations to these changes. health and safety threats, such as of a property that change the ‘‘footprint’’ EPA requests comment on the structural failure leading to flooding, of a site or building in such a way that appropriateness of the specified undesirable animal and insect breeding, results in the disturbance of equal to or requirements for post-construction and odors. Maintenance of structural greater than 1 acre of land. The term is storm water management in new BMPs could include activities to restore not intended to include such activities development and redevelopment. the integrity of infiltration control BMPs as exterior remodeling, which would vi. Pollution Prevention/Good such as replacing upper levels of gravel; not be expected to cause adverse storm Housekeeping for Municipal dredging of detention ponds; and repair water quality impacts and offer no new Operations. In today’s proposal, any of outlet structure integrity. Non- opportunity for storm water controls. NPDES permit issued to an owner or structural BMPs could also require EPA intends to provide guidance to operator of a regulated small municipal maintenance over time. For example, owners or operators of municipal separate storm sewer system must, at a educational materials might need to be systems and permitting authorities on minimum, require the owner or operator updated periodically. appropriate planning considerations, to develop and implement a cost- EPA intends that controls for structural and non-structural controls, effective operation and maintenance/ discharges from maintenance and and post-construction operation and training program with the ultimate goal storage yards listed above include maintenance of BMPs. Guidance of preventing or reducing pollutant controls for discharges from salt/sand materials would also address questions runoff from municipal operations. EPA storage locations and snow disposal regarding responsibility for long-term would encourage the owner or operator areas operated by the municipality. EPA operation and maintenance of storm to consider the following in developing encourages coordination with flood water controls. EPA also intends to such a program: (1) Maintenance control managers for the purpose of present a broad menu of options as activities, maintenance schedules, and identifying and addressing the guidance allowing for flexibility to long-term inspection procedures for environmental impacts of existing and accommodate local conditions. EPA structural and other storm water proposed flood management activities. Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1579

Using existing storm water pollution circumstances: The other entity is governmental entity about the prevention training materials that could implementing the control measure; the arrangement. Instead, EPA anticipates it be available from the NPDES authorities particular control measure (or would be the responsibility of the or from other organizations whose component thereof) is at least as NPDES permitting authority to do so. materials are approved by the local stringent as the corresponding NPDES b. Application Requirements, Including government, the program would need to permit requirements; and the owner or Notice of Intent include local government employee operator has requested, and the other training addressing these prevention entity has agreed to accept As part of the municipal program, the measures in government operations responsibility for, implementation of a owner or operator of a regulated small (such as park, golf course and open particular control measure (or measures) municipal separate storm sewer system space maintenance; fleet maintenance; on behalf of, and to satisfy, the owner would be required to identify and planning, building oversight and storm or operator’s municipal permit submit to the NPDES permitting water system maintenance). In obligations. The owner or operator authority, either in a notice of intent developing this minimum program would need to specify in the (NOI) to be covered under a general element, the Agency sought to identify § 122.34(f)(3) reports submitted to the permit or in an individual permit existing practices and training as a NPDES permitting authority when the application, the BMPs that the owner or means to avoid duplication of efforts owner or operator relies on another operator would implement and the and reduce overall costs. EPA also person to satisfy the permit obligations. measurable goals for the minimum sought to emphasize those practices or The owner or operator would remain control measures discussed previously. programs designed and undertaken by responsible for compliance with the In reviewing NOIs submitted by the municipalities to address non-storm permit obligations if the entity fails to owners or operators of municipal water problems but also that have storm implement the control measure (or systems, the NPDES permitting water pollution prevention benefits. In component thereof). Therefore, EPA authority would need to pay particular addition, EPA designed this municipal would encourage the owner or operator attention to the BMPs and measurable program measure intending to create a to enter into a legally binding agreement goals identified for municipal separate streamlined version of the permit with that entity to minimize any storm sewer systems that are located in application requirements for medium uncertainty regarding compliance with impaired watersheds. Where specific and large municipal separate storm the NPDES permit. measurable goals to satisfy minimum sewer systems described at 40 CFR control measures in paragraphs (b)(3) In addition to the permittee- 122.26(d)(2)(iv). The streamlined through (b)(6) of § 122.34 (illicit coordinated arrangement, today’s approach is intended to provide more discharges detection and elimination, proposal also includes a provision that flexibility for these smaller construction site storm water runoff would allow the NPDES permitting municipalities. Today’s proposed control, post-construction storm water authority to recognize existing requirements provide for a consistent management in new development and responsibilities among governmental approach to control pollutants from redevelopment, pollution prevention/ entities for the control measures in an operation and maintenance among good housekeeping for municipal medium, large, and regulated small NPDES permit. For example, a State operations) are identified in an NOI, municipal separate storm sewer may have an existing erosion and these goals would not constitute a systems. sediment control program that condition of the NPDES permit, unless By implementing a cost-effective adequately addresses construction site EPA or the State has provided or issued operation and maintenance program, the discharges to regulated small municipal a menu of regionally appropriate, field- municipal storm system owner or separate storm sewer systems. The tested BMPs that it believes to be cost- operator would serve as a model for the NPDES permitting authority in that effective. EPA has limited this provision regulated community. Furthermore, the State could draft the NPDES permit to only four of the minimum control establishment of a long-term training conditions such that the State is measures because the Agency does not and maintenance program could result responsible for the construction site believe that municipalities need the in cost savings for the owner or operator storm water discharge control minimum kind of technical assistance in by minimizing possible damage to the measure. Assuming that no other developing measurable goals for public system from floatables and other debris existing programs meet the education and outreach or public and, consequently, reducing the need requirements of the other minimum involvement that might be essential in for repairs. control measures, the municipality determining measurable goals for the The proposed minimum measure, would be responsible for implementing other four minimum control measures. which originated with members of the those remaining minimum measures. Measurable goals for the two minimum Storm Water Phase II FACA Where the NPDES permitting authority control measures of public education Subcommittee, is similar to the recognizes existing responsibilities for and outreach and public involvement requirements of the existing storm water one or more of the minimum control would be required and would be program. EPA requests comment on the measures in an NPDES permit, these enforceable permit conditions even appropriateness of the specified responsibilities would be waived from a without the issuance of the menu of requirements for pollution prevention/ regulated small system’s storm water BMPs. In the general permit NOI or good housekeeping for municipal management plan and would remain individual permit application, the operations. waived as long as the other owner or operator would also be vii. Satisfaction of Minimum Measure governmental entity implements the required to identify the month and year Obligations. Today’s proposal would measure consistent with the proposed in which the owner or operator would allow regulated small system owners or municipal program permit requirements start and would aim to complete each of operators to satisfy their NPDES permit at § 122.34(b). When the NPDES the minimum control measures or obligations for a minimum control permitting authority recognizes an indicate the frequency of the action. measure by having another existing responsibility in an NPDES The NPDES permitting authority governmental or other entity perform permit, the permittee would not be would specify a time period (of up to the measure under the following obligated to notify the other five years) for the owner or operator to 1580 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules fully develop and implement the plans appropriate to the watershed. EPA monitoring efforts. EPA expects, program. The owner or operator would does not encourage requirements for however, that their participation in also be required to identify in the ‘‘end-of-pipe’’ monitoring for regulated monitoring activities would be general permit NOI or individual permit small municipal storm sewer systems. relatively limited. For purposes of application the person or persons Rather, EPA encourages permitting today’s proposal, EPA recommends that, responsible for implementing or authorities to carefully examine existing in general, small municipalities not be coordinating the municipal storm water ambient water quality and assess data required to conduct in the first permit program. EPA intends to provide needs. Permitting authorities should term any additional monitoring beyond guidance on the development of BMPs consider a combination of physical, any they may be already performing. In and measurable goals. EPA would later chemical, and biological monitoring or the second and subsequent permit modify, update, and supplement this the use of other environmental terms, EPA expects that some limited guidance based on the assessments of indicators such as exceedance ambient monitoring might be the municipal storm water program and frequencies of water quality standards, appropriately required for perhaps half research conducted over the next 13 impacted dry weather flows, increased of the regulated small municipal years. flooding frequency, and fish assemblage. separate storm sewer systems. EPA EPA seeks comment on certain permit (Claytor, R. and W. Brown. 1996. expects that such monitoring would application provisions identified in Environmental Indicators to Assess only be done in several discrete today’s proposed rule. First, EPA seeks Storm Water Control Programs and locations for relatively few pollutants of comment on the potential implications Practices. Center for Watershed concern. EPA does not anticipate ‘‘end- of linking the enforceability of Protection, Silver Spring, MD.) Section of-pipe’’ monitoring requirements for measurable goals identified in an NOI to II.L., Water Quality Issues, discusses regulated small municipal separate EPA/State issuance of a menu of monitoring in greater detail. storm sewer systems. EPA seeks regionally appropriate BMPs. EPA also As recommended by the comment on this approach, particularly requests comment on the procedure for Intergovernmental Task Force on from the perspective of dischargers issuing a regionally appropriate menu of Monitoring Water Quality (ITFM), the other than small municipalities, on the BMPs. For example, the menu could be NPDES permitting authority would be sharing of responsibility for the support developed and published concurrently encouraged to consider the following of monitoring activities. with the general permit or prior to or watershed objectives in determining i. Recordkeeping. The NPDES after issuance of the general permit. monitoring requirements: (1) to permitting authority would be required Furthermore, commenters have raised characterize water quality and to include at least the minimum concerns that if measurable goals ecosystem health in a watershed over appropriate recordkeeping conditions in become enforceable permit conditions time, (2) to determine causes of existing each permit. Additionally, the NPDES without a menu of BMPs first being and future water quality and ecosystem permitting authority could specify that issued, the owner or operator of the health problems in a watershed and permittees develop, maintain, and/or municipal system would only propose develop a watershed management submit other records to determine easily attainable goals that might not program, (3) to assess progress of compliance with permit conditions. The achieve higher levels of water quality watershed management program or owner or operator would need to keep protection. Conversely, municipalities effectiveness of pollution prevention these records for at least 3 years but are concerned that measurable goals not and control practices, and (4) to support would not be required to submit records become enforceable permit documentation of compliance with to the NPDES permitting authority requirements until the permitting permit conditions and/or water quality unless specifically directed to do so. authority determines that they are, in standards. With these objectives in The owner or operator would be fact, achievable through the use of cost- mind, the Agency encourages required to make the records, including effective BMPs. EPA seeks comment on participation in group monitoring the storm water management program, these concerns. Finally, EPA seeks programs that would take advantage of available to the public at reasonable comment on how an NOI form might existing monitoring programs times during regular business hours (see best be formatted to allow for undertaken by a variety of governmental 40 CFR 122.7 for confidentiality measurable goal information (e.g., and nongovernmental entities. Many provision). The owner or operator through the use of check boxes or States may already have a monitoring would also be able to assess a narrative descriptions) while taking into program in effect on a watershed basis. reasonable charge for copying and to account the need to facilitate computer The ITFM report is included in the establish advance notice requirements, tracking. docket for this proposal not to exceed 2 business days, for (Intergovernmental Task Force on members of the public. c. Evaluation and Assessment Monitoring Water Quality. 1995. The ii. Reporting. Under today’s proposal, Under today’s approach, owners or Strategy for Improving Water-Quality the owner or operator of a regulated operators would be required to evaluate Monitoring in the United States: Final small municipal separate storm sewer the appropriateness of their identified Report of the Intergovernmental Task system would be required to submit BMPs and progress toward achieving Force on Monitoring Water Quality. annual reports to the NPDES permitting their identified measurable goals. The Copies can be obtained from: U.S. authority for the first permit term. For purpose of this evaluation is to Geological Survey, Reston, VA.). subsequent permit terms, the owner or determine whether or not the owner or EPA expects that many types of operator would need to submit reports operator is meeting the requirements of entities would have a role in supporting in years 2 and 4 unless the NPDES the minimum control measures group monitoring activities—including permitting authority required more identified in today’s proposal. The federal agencies, State agencies, the frequent reports. EPA determined that NPDES permitting authority would be public, and various classes or categories annual reports would be needed during responsible for determining whether of point source dischargers. It is the first 5-year permit term to help any monitoring needs to be conducted possible that some regulated small permitting authorities in track and and could require monitoring in municipal separate storm sewer systems assess the development of municipal accordance with State/Tribe monitoring would need to contribute to such programs, which should be well Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1581 established by the end of the initial large municipal separate storm sewer 1999, final rule, the resulting deadline term. Information contained in these systems at § 122.42(c)). In addition, the would be May 31, 2002—this allows 90 reports could be used to respond to NPDES permitting authority is days after the issuance of a general public inquiries. encouraged to consult the Interim permit to submit the NOI. Owners or The report would need to include (1) Permitting Approach, issued on August operators of regulated small municipal the status of compliance with permit 1, 1996. The discussion on the Interim separate storm sewer systems that conditions, an assessment of the Permitting Approach in Section II.L.1, choose to be a co-permittee with an appropriateness of identified BMPs and Water Quality Standards, provides more adjoining municipality or other progress toward achieving measurable information. Members of the municipal governmental entity with an existing goals for each of the minimum control caucus expressed considerable concern NPDES storm water permit would need measures, (2) results of information that imposing these conditions would, to apply for a modification of that collected and analyzed, including in effect, undermine the intent of the permit by May 31, 2002—allowing for monitoring data, if any, during the program developed in consultation with 90 days as well. EPA recognizes that the reporting period, (3) a summary of what the Storm Water Phase II FACA use of the ‘‘latest’’ Decennial Census by storm water activities the permittee Subcommittee—to develop a program the Bureau of the Census as a basis for plans to undertake during the next with a simplified set of permit nationwide designation raises an issue reporting cycle, and (4) a change in any requirements based on the regarding applicable deadlines for identified measurable goal or goals that implementation of BMPs. EPA does not municipalities brought into the program apply to the program elements. believe that this is a concern. The due to 2000 Census calculations. EPA The NPDES permitting authority provisions of §§ 122.41 through 122.49 proposes that small municipal separate would be encouraged to use a brief (e.g., establish permit conditions and storm sewer systems that are two-page) reporting format to facilitate limitations that are broadly applicable automatically designated as of the 2000 compiling and analyzing the data from to the entire range of NPDES permits. Census would need to seek coverage submitted reports. The permitting These provisions should be interpreted under an NPDES permit within 3 years authority would use the reports in in a manner that is consistent with and 90 days from the date of publication evaluating compliance with permit provisions that address specific classes of the final rule. Since the official conditions and, where necessary, would or categories of discharges. For example, Bureau of the Census urbanized area modify the permit conditions to address § 122.44(d) is a general requirement that calculation for the 2000 Census is changed conditions. EPA requests each NPDES permit shall include expected to be published by August comment on the appropriate content of conditions to meet water quality 2001, this proposed deadline would the reports and the timing of the standards. This requirement would be allow the affected municipalities to submittal. met by the specific approach outlined in have approximately 9 months notice to iii. Permit-As-A-Shield. Section today’s proposal for the implementation prepare for compliance under the 122.36 describes the NPDES ‘‘permit-as- of BMPs as the most appropriate form of applicable permit. EPA invites comment a-shield’’ coverage offered by section effluent limitations to satisfy technology on this proposed deadline for 402(k) of the CWA. Section 402(k) requirements and water quality-based municipalities affected by the 2000 provides that compliance with an requirements (see the introduction to Census. EPA also seeks comment on the NPDES permit would be deemed Section II.H.3, Municipal Permit appropriateness of the range of time compliance, for purposes of Requirements, Section II.H.3.g, allowed for regulated small municipal enforcement under CWA sections 309 Reevaluation of Rule, and the separate storm sewer systems to prepare and 505, with CWA sections 301, 302, discussion of the Interim Permitting an NOI or permit application, which 306, 307, and 403, except for any Policy in Section II.L.1.a. below). varies from 3 years and 90 days (if standard imposed under section 307 for automatically designated by the 1990 e. Enforceability toxic pollutants injurious to human Census) to 60 days (if designated by the health. NPDES permits are federally NPDES permitting authority under EPA’s Policy Statement on Scope of enforceable. Violators may be subject to proposed § 122.32(a)(2)), with 9 months Discharge Authorization and Shield the enforcement actions and penalties in between (if automatically designated Associated with NPDES Permits, issued described in CWA sections 309, 504, by the 2000 Census). on July 1, 1994, and revised by EPA’s and 505 or under appropriate State or As stated above, owners or operators policy memorandum on the same local law. Compliance with a permit of regulated small municipal separate subject issued on April 11,1995, issued pursuant to section 402 of the storm sewer systems designated by the provides additional information on this Clean Water Act would be deemed NPDES permitting authority on a local matter. compliance, for purposes of sections basis under § 122.32(a)(2) would need to 309 and 505, with sections 301, 302, seek coverage under an NPDES permit d. Other Applicable NPDES 306, 307, and 403 (except any standard within 60 days of notice, unless the Requirements imposed under section 307 for toxic NPDES permitting authority specifies a Any NPDES permit issued to an pollutants injurious to human health). later date. EPA seeks comment owner or operator of a regulated small specifically on whether 60 days f. Deadlines municipal separate storm sewer system provides adequate time for the would also need to include other Under § 122.32(a)(1) of today’s preparation of an NOI or permit applicable NPDES permit requirements proposed rule, which automatically application or if a 90 day time period and standard conditions, specifically designates all small municipal separate would be more appropriate. those requirements and conditions at 40 storm sewers located in an ‘‘urbanized CFR 122.41 through 122.49 (EPA area,’’ owners or operators of regulated g. Reevaluation of Rule recognizes that reporting requirements small municipal separate storm sewer The municipal caucus of the Storm for regulated small municipal separate systems would need to seek coverage Water Phase II FACA Subcommittee storm sewer systems would be governed under an NPDES permit within 3 years asked EPA to demonstrate its by proposed § 122.34 and not the and 90 days from the date of publication commitment to revisit today’s proposed existing requirements for medium and of the final rule. Assuming a March 1, rule as it applies to municipal separate 1582 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules storm sewer systems and make changes allocations for the discharge contained that construction activities on less than where necessary after evaluating the in EPA-approved TMDLs. Consequently, 5 acres are non-industrial in nature’’ storm water program and researching where wasteload allocations have been (966 F.2d at 1306). The court remanded the effectiveness of municipal BMPs. established for a municipal storm water the exemption to EPA for further Today, EPA is proposing § 122.37 to source in approved TMDLs, the permit proceedings (966 F.2d at 1310). EPA’s commit the Agency to revisit the would need to include terms and objectives in today’s proposal include regulations for the municipal storm conditions consistent with the an effort to (1) address the 9th Circuit water program, at §§ 122.32 through assumptions and requirements of the remand, (2) address water quality 122.26 and 123.35, after completion of wasteload allocations. These terms and concerns associated with construction the first two permit terms. The Agency conditions might include non-numeric activities that disturb less than 5 acres intends to use this time to work closely requirements, such as implementation of land, and (3) balance conflicting with stakeholders on research efforts. of BMPs coupled with some means to recommendations and concerns of Gathering and analyzing data related to monitor effectiveness, if they are stakeholders. the storm water program, including data consistent with the assumptions and EPA responded to the 9th Circuit’s regarding the effectiveness of BMPs, requirements of the conditions of the request for further proceedings by during this time would be critical to wasteload allocations. consulting with the Storm Water Phase EPA’s storm water program evaluation. II FACA Subcommittee regarding I. Other Designated Storm Water The Agency does not intend to change possible approaches for addressing the Discharges today’s proposed NPDES municipal remanded provision. Although the storm water program until the end of 1. Background Subcommittee was not able to reach consensus on any of the issues relating this period, except under the following Under section 402(p)(6), EPA is circumstances: a court decision requires to the construction remand, proposing to regulate categories of storm Subcommittee members provided changes; a technical change is necessary water discharges in addition to the for implementation; or the CWA is considerable feedback concerning a municipal separate storm sewer systems variety of possible approaches. Today’s modified, thereby requiring changes. described earlier. The proposal would After careful analysis, the Agency might proposal represents the Agency’s effort designate certain construction activities to balance the concerns raised by also consider changes from consensus- for regulation as ‘‘storm water based stakeholder requests for newly various subcommittee representatives. discharges associated with other This proposal would designate regulated municipal systems. EPA activity.’’ Specifically, such discharges would apply the August 1, 1996, Interim discharges from construction activities would include storm water discharges that disturb between 1 and 5 acres as Permitting Approach to today’s from construction sites disturbing equal proposed program during this interim ‘‘discharges associated with other to or greater than 1 acre and less than activity’’ under section 402(p)(6), rather period and would encourage all 5 acres, unless the NPDES permitting permitting authorities to use this than as ‘‘discharges associated with authority waives the application industrial activity’’ under section approach in storm water permits for requirements. newly regulated municipal systems and 402(p)(2)(B). Although a size criterion Today’s action also would maintain alone may be an indicator of whether in determining municipal requirements the existing application deadline from under a TMDL approach. After careful runoff from construction sites between 1 the August 7, 1995, rule for municipally and 5 acres is ‘‘associated with consideration of the data, EPA would owned or operated sources of industrial industrial activity,’’ the Agency is make modifications as necessary. EPA is storm water exempted from the October instead proposing to rely on a size seeking comment on the proposal to re- 1, 1994, compliance deadline by the threshold in tandem with provisions evaluate the rule after 13 years from the Intermodal Surface Transportation and that allow for designations and waivers date of publication of the final rule (i.e., Efficiency Act of 1991 (and the Water based on potential for ‘‘predicted water following the completion of the first two Resources Development Act of 1992). quality impairments’’ to regulate such permit terms). The proposed regulation, including construction sites under section In addition, proposed § 122.37 states application deadlines, for each of these 402(p)(6) for the sake of simplicity and that EPA strongly recommends that no classes is further explained below. certainty and, most importantly, to additional requirements beyond the 2. Construction protect water quality consistent with the minimum control measures be imposed mandate of section 402(p)(6). The on regulated municipal separate storm Today’s proposal to regulate certain proposal would include extended water systems without the agreement of storm water discharges from application deadlines for this new the affected municipal separate storm construction sites disturbing less than 5 category of dischargers under the water system, except where adequate acres is consistent with the 9th Circuit authority of section 402(p)(6) (see * information exists in approved TMDLs remand in NRDC v. EPA, 966 F.2d 1292 122.26(e)(1)(iii)). The proposed or equivalents of TMDLs to develop (9th Cir. 1992). In that case, the court designation would also be consistent more specific measures to protect water remanded portions of the existing storm with EPA’s earlier proposal to regulate quality or until EPA’s comprehensive water regulations related to discharges this category of discharges as evaluation is completed. The wasteload from construction sites. The existing ‘‘discharges associated with industrial allocations that form part of approved regulations define ‘‘storm water activity’’ (55 FR 48035–36). TMDLs or equivalents of TMDLs would discharges associated with industrial Today’s proposal would designate constitute ‘‘adequate information to activity’’ to include only those storm storm water discharges from certain develop more specific conditions or water discharges from construction sites construction sites under 5 acres for limitations to meet water quality disturbing 5 acres or more of total land regulation based on the authorities of standards.’’ EPA regulations at 40 CFR area (see 40 CFR 122.26(b)(14)(x)). In its section 402(p)(6) because such sources 122.44(d)(1)(vii) currently require that decision, the court concluded that the 5- should be regulated to protect water effluent limits in NPDES permits be acre threshold was improper because quality. Section I.A.1., under consistent with assumptions and the Agency had failed to identify Construction Site Runoff, provides a requirements of any available wasteload information ‘‘to support its perception detailed discussion of water quality Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1583 impacts resulting from construction site coverage under an NPDES permit. EPA also examined alternative size storm water runoff. Under section Categorical regulation of construction thresholds, including 0.5 acre, 1 acre, 402(p)(6), such designation also carries below this 1-acre threshold would and 2 acres. EPA had difficulty with it ‘‘expeditious deadlines,’’ which overwhelm the resources of permitting evaluating the alternative size are important to ensure a nationally authorities. The NPDES permitting thresholds because, while directly consistent timeperiod for the authority could, however, designate for proportional to the size of the disturbed development and implementation of a regulation those construction activities site, the water quality threat posed by program to regulate these sources. EPA that disturb below 1 acre of land if a construction sites of differing sizes invites comment on how the Agency watershed or other local assessment varies nationwide, depending on the should codify this proposed indicated the need to do so. local climatological, geological, designation, as well as the statutory Furthermore, the permitting authority geographical, and hydrological basis upon which EPA should rely for could designate any other construction influences. In the interest of nationwide regulation of storm water discharges activity ‘‘based on the potential for consistency, EPA does not propose to from construction sites less than 5 acres. adverse impact on water quality or for allow permitting authorities to set their The proposed regulatory changes for significant contribution of pollutants’’ own size thresholds. By selecting the 1 storm water construction activities are (see new § 122.26(a)(9)(i)(D) and acre size threshold coupled with not proposed in the same ‘‘question and § 122.26(b)(15)(i)(B)). waivers and designation, EPA sought to answer’’ format as the other regulations The proposed 1-acre threshold is make the regulation consistent on a proposed because ‘‘storm water based on a balanced consideration of national basis and to also provide discharges associated with other recommendations from numerous permitting authorities with the activity’’ would be included as a new stakeholders participating in the Storm opportunity to further designate those category of dischargers in the NPDES Water Phase II FACA Subcommittee activities causing water quality regulations for storm water. process. In today’s proposed rule, EPA impairments regardless of site size. a. Scope is attempting to regulate additional Thus, oversight of discharges from construction sites to better protect the construction site activities less than 5 The definition of ‘‘storm water acres would be consistent on a national nation’s waters, while remaining discharges associated with other basis and would ultimately allow local sensitive to a concern that the Agency activity’’ would include construction authorities to address those activities not regulate construction sites that activities, including clearing, grading, causing water quality impairment might not have adverse water quality and excavating activities, that result in regardless of any cutoff or threshold impacts. EPA believes that today’s the disturbance of equal to or greater acreage. than 1 acre and less than 5 acres (see proposal would successfully accomplish new language at § 122.26(b)(15)). Such this objective by coupling a 1-acre b. Waivers activities might include road building; threshold that includes waiver options Under the proposal, NPDES construction of residential houses, office for sites that have been determined not permitting authorities would have the buildings, or industrial buildings; or to impact water quality with the option of providing a waiver to demolition activity. Sites disturbing less provision that allows the designation construction site owners or operators than 1 acre would be included if they authority to include sites below 1 acre from permit requirements in three were part of a ‘‘larger common plan of that do impact water quality. circumstances. The first waiver would development or sale’’ with a planned Specifically, construction activity equal be based on ‘‘low predicted rainfall disturbance of equal to or greater than to or greater than 1 acre and less than potential.’’ The permitting authority 1 and 5 acres. A ‘‘larger common plan 5 acres would be automatically would determine which times of year, if of development or sale’’ would mean a designated except in those any, the waiver opportunity would be contiguous area where multiple separate circumstances where owner or operator available for construction sites based on and distinct construction activities certifies that any of three specific waiver a table of R values published in the U.S. might be occurring at different times on circumstances (described below) would Department of Agriculture (USDA) different schedules under one plan (e.g., apply. As mentioned previously, Agricultural Handbook 703 (Renard, a housing development of five 1⁄4 acre construction activity that disturbs less K.G., Foster, G.R., Weesies, G.A., lots) (§ 122.26(b)(15)(i)(A)). Such sites than 1 acre would not be automatically McCool, D.K., and D.C. Yoder. 1997. would be required to seek coverage designated, but the NPDES permitting Predicting Soil Erosion by Water: A under an NPDES permit regardless of authority could designate such areas for Guide to Conservation Planning with the the number of lots in the larger plan permitting where there is reason to Revised Universal Soil Loss Equation because designation for permit coverage believe that impacts to water quality are (RUSLE). U.S. Department of would be based on the total amount of likely to occur from activity on these Agriculture Handbook 703. Copies may disturbed land area. This proposed sites. For example, if a trout hatchery be obtained from USDA-ARS, designation attempts to address the area is located downstream from the Southwest Watershed Research Center, potential cumulative effects of proposed less than 1-acre site, the 2000 East Allen Road, Tucson, AZ numerous construction activities permitting authority would likely want 85719.). These tables summarize average concentrated in a given area. These to control the construction activity’s periodic rainfall data on a geographic requirements would not apply to impact on trout egg survival. EPA basis throughout the United States. The agricultural or silvicultural activities, believes that coupling categorical second waiver would be based on ‘‘low which are exempt from NPDES permit designations with waivers would be predicted soil loss.’’ Under this waiver, requirements under 40 CFR 122.3. necessary to address the challenge of the permittee would apply the Revised Although all construction sites less providing a technical justification for a Universal Soil Loss Equation (RUSLE) to than 5 acres could have a significant nationwide size threshold considering determine whether or not the second water quality impact cumulatively, EPA the hydrologic, climatologic, waiver would be available. The third today is proposing to require that only geographic, and geologic variations waiver would be based on a construction sites that disturb land nationwide. EPA invites comment consideration of ambient water quality. equal to or greater than 1 acre seek regarding this approach. This waiver would be available after 1584 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules development and implementation of construction site soil losses in the early waiver, EPA (if the NPDES permitting TMDLs for the pollutants of concern 1970s (Wischmeir and Meyer, 1973). authority) might rely on a State’s from storm water discharges associated USLE is a widely used and easily wasteload allocations that are part of with construction site storm water accessible equation which predicts soil TMDLs or a State’s comprehensive runoff. This waiver would also be loss from four variables; rainfall watershed plan in which the available after development and erosivity, soil erodibility, length of equivalents of TMDLs has been done as implementation of a TMDL-like slope, and steepness of slope. A part of the watershed plan. To qualify allocation process in water bodies that refinement of USLE is reflected in the for this waiver option, the owner or are not impaired. Note that TMDLs are Revised Universal Soil Loss Equation operator would need to certify that the only required for water bodies listed (RUSLE), which provides a broader construction activity will take place, under CWA section 303(d). range of data within the individual and storm water discharges will occur, The first waiver would be time- variable. Several permitting authorities within an area covered either by the sensitive and would be dependent on have recommended the utilization of the TMDLs or comprehensive watershed when during the year a construction USLE or RUSLE for predicting plan. By using the term ‘‘comprehensive activity takes place, how long it lasts, construction site soil losses in their watershed plan,’’ EPA recognizes that and the expected rainfall during that guidance documents that support TMDLs address ‘‘impaired waters’’ and time. The waiver is intended to exempt implementation of the existing storm that there may be TMDL-like activities the requirements for a permit when and water program. on waters that are not found to be where the permitting authority expects Today, EPA is proposing a modified ‘‘impaired.’’ It is expected that when negligible rainfall. EPA anticipates that use of the equation for purposes of TMDLs are done there may be a this waiver opportunity would respond predicting soil erosion rates from small determination, in some cases, that to concerns about the requirement for a construction sites using the RUSLE. The certain classes of sources such as small permit when it does not rain, especially equation comprises the variables rainfall construction sites would not have to in the arid western States. Under this erosivity (R), soil erodibility (K), slope control their contribution of pollutants waiver provision, the permitting length (L), slope steepness (S), cover- of concern to the waterbody in order for authority could identify timeperiods management factor (C), and the support it to be in attainment (i.e., these sources when construction activity could be practice factor (P). The equation is: are not assigned wasteload allocations) waived from permitting requirements A-RKLSCP and, therefore, implementation of storm where the rainfall erosivity factor (‘‘R’’ water controls would not be necessary where A is the average soil erosion rate in the Revised Universal Soil Loss under today’s proposed storm water Equation (RUSLE)) is less than two in tons per acre per year. This waiver program. during the period of construction provision would be applicable on a EPA is continuing to review technical activity for specific areas of the State. case-by-case basis where the annual soil information to determine whether the EPA believes that those areas receiving loss rate for the period of construction waiver thresholds for rainfall erosivity negligible rainfall during certain times for a site would be less than 2 tons/acre/ and annual soil loss are the appropriate of the year are unlikely to have storm year. The annual soil loss rate of less thresholds. The agency is also interested water events that would adversely than 2 tons/acre/year would be in comment regarding the feasibility of impact receiving streams and, calculated through the use of the these waiver provisions. For example, consequently, BMPs would not be equation, assuming the constants of no concerns have been raised that necessary on those smaller sites. This ground cover and no runoff controls in application of the second waiver (case- waiver would be most applicable to the place. For the purposes of today’s by-case basis where the annual soil loss arid regions of the country where the proposal, RUSLE would be used to rate for the period of construction for a occurrence of rainfall follows a cyclic predict where storm water discharges site would be less than 2 tons/acre/year) pattern—between no rain and extremely associated with construction activity might not sufficiently protect sensitive heavy rain. Review of rainfall records (i.e., soil disturbance through clearing, ecosystems or species. Impacts from fine for these areas indicates that there are grading, and excavating would not be sediment could be heightened for coral periods (up to 6 months) during which expected to adversely affect water reef systems or for extremely the number of events and quantity of quality.) oligotrophic systems, such as Lake rain are low enough that storm water The third waiver would be available Tahoe in Nevada or Crater Lake in runoff from small sites is predicted to be where the State (or EPA) has completed Oregon (see the general discussion of minimal. Default conditions that were either wasteload allocations that are part construction impacts in Section I.A.1., included in this examination consisted of TMDLs that address the pollutants of Construction Site Runoff). In addition, of slope length (300 feet), slope concern or a comprehensive watershed concerns have been raised that the steepness (3%), soil type (silt), no plan, implemented for the water body, second waiver provision would be too natural cover material, and no erosion in which the equivalents of TMDLs have complicated and, thus, misapplied control practices in place. been done as part of the watershed plan because the variables and assumptions The second option for a waiver would addressing the pollutants of concern in the RUSLE would be misinterpreted be based on ‘‘low predicted soil loss’’ from construction activities. The or misrepresented. EPA encourages the and would be available where permitting authority would need to submission of data and other application of the RUSLE by the reflect relevant components of the information that could ensure a waiver permittee indicated negligible predicted comprehensive watershed plan or process that is fair and easily applied soil loss. Developed initially by the TMDLs in NPDES permits. The while providing sufficient protection for USDA as a predictive tool to evaluate watershed plan, or TMDLs, would need sensitive ecosystems. the potential for soil loss from to demonstrate with reasonable Preliminary comments on the agricultural lands at various times of the assurance that load reductions take proposed waiver provisions also raised year and on a regional basis, the place pursuant to CWA section 303(d) a process issue regarding how a Universal Soil Loss Equation (USLE) and that such discharge does not cause permittee would qualify for a waiver. was identified as a technique which or have a potential to cause water Today’s proposal includes a could be useful in predicting quality impacts. In determining this certification process whereby the Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1585 permittee would certify to the NPDES recommendations for the use of such at § 122.26(c)(1)(ii). Except for permitting authority that it meets the incentives. application deadlines and NOIs under particular waiver criteria or waiver general permits, the permit application c. Permit Process and Administration requirements applicable in a particular requirements would be identical to State or watershed (see proposed As with any owner or operator of a those applicable to storm water § 122.26(b)(15)(i)(A)(1)–(3)). EPA invites point source discharge, the operator of discharges associated with industrial comment on such a certification process the construction site would be activity under the existing NPDES storm and requests comment on any other responsible for applying for the NPDES water program. EPA proposes to revise similar process that could reduce the permit as required by § 122.21(b). The § 122.26 accordingly. For any discharges waiver processing burden for the operator of a construction activity of storm water associated with other NPDES permitting authority and the would be the party or parties that either activity identified in § 122.26(b)(15) that permittee while ensuring that waivers individually or collectively meet the are not authorized by a general permit, are granted only for those circumstances following two criteria: (1) operational a permit application made pursuant to applicable under one of the three waiver control over the site specifications, § 122.26(c) would need to be submitted options. including the ability to make to the Director by 3 years and 90 days EPA also seeks comment from modifications in the specifications; and after issuance of the final rule. All permitting authorities on how they (2) day-to-day operational control of regulated sources would be required to envision the process of implementing those activities at the site necessary to seek coverage under an NPDES permit waivers for construction activity based ensure compliance with permit regardless of whether they discharge on TMDLs or TMDL-type assessments conditions. If more than one party meets directly to waters of the United States or under watershed plans. these criteria, then each party involved through a municipal separate storm EPA invites comment on concerns would need to be a co-permittee with sewer system to waters of the United that waivers might be improperly any other operators. The operators could States. utilized in an effort to provide relief to be the owner, the developer, the general The Storm Water Phase II FACA regulated entities for reasons unrelated contractor, or individual contractors. Subcommittee also identified issues to water quality. In particular, concerns As mentioned previously, the Agency regarding linear construction projects have been raised that an NPDES has proposed extended application (e.g., roads, highways, pipelines) that permitting authority might redirect deadlines for small construction sites at cross several jurisdictions. Some resources from other environmental § 122.26(e)(1)(iii). EPA also considered Subcommittee members were concerned programs in order to develop a whether NOIs should be required of about having to comply with multiple watershed approach that promotes the construction sites less than 5 acres. sets of requirements from various issuance of the greatest possible number Requiring an NOI allows for greater jurisdictions, including multiple local of waivers. accountability by, and tracking of, governments and States. Because EPA In addition to waivers, the Agency is dischargers. It allows for better outreach cannot issue NPDES permits in States also considering possible approaches for to the regulated community, uses an authorized to implement the NPDES providing incentives for local existing and familiar mechanism, and is program and because EPA cannot decisionmaking that would limit the consistent with the existing preempt other more stringent local and adverse water quality impact associated requirements for construction activities. State requirements, EPA is limited in its with uncontrolled growth in a EPA recognizes, however, the options to address these concerns. EPA watershed. In situations where there are paperwork burden for both the regulated believes that the option for special controls or incentives (e.g. community and regulators. The Agency incorporating by reference the local or transferable development rights, is proposing not to specify the NOI State requirements (see discussion in traditional neighborhood development requirements for NPDES general permits Section II.I.2.d., Cross-Referencing ordinances) in place directing for storm water at § 122.28 to address State/Local Erosion and Sediment development toward compact/mixed the storm water discharges from Control Programs) would limit the use development and away from construction activities proposed to be administrative burden on the operator wetlands, open space, or other protected regulated at § 122.26(b)(15). EPA responsible for discharges from linear lands, it may be possible to provide believes that this approach would construction projects. The operator some relief to small construction sites in provide the NPDES permitting authority could implement the most areas of less dense development, with the discretion to decide whether or comprehensive of the various provided that the average development not to require NOIs for construction requirements for the whole project to densities are very low (e.g., less than activity less than 5 acres. Thus, the avoid differing requirements for one unit per 25 acres). In addition, relief proposal would increase flexibility for different sections of the project. In from requirements may also be the permitting authority regarding addition, EPA notes that discharges of appropriate where redevelopment program implementation. The Agency dredged or fill material into waters of construction replaces existing invites comment on whether NOI the United States that are regulated development and the new development submission should be a requirement for under section 404 of the CWA do not results in a net water quality benefit. general permits for construction activity require NPDES permits (40 CFR This type of incentive could be a less than 5 acres. 122.3(b)). consideration in development of TMDLs EPA expects that the vast majority of On a similar note, one comment or by State or local authorities. Based on a discharges of storm water associated requested exemptions for ‘‘routine TMDL that recognizes that the with other activity identified in maintenance’’ activities such as discharges from areas of less § 122.26(b)(15) would be regulated repairing potholes, clearing out drainage development do not cause or have through general permits. In the event ditches, and maintaining fire breaks, potential to cause water quality impacts, that an NPDES permitting authority because these activities often involve relief from small construction site decides to issue an individual rights-of-way extending across multiple permitting requirements could be construction permit, however, regulatory jurisdictions. The commenter granted. EPA solicits comment on this individual application requirements for suggested that, at most, these activities approach and any other these construction sites would be found by required to adhere to generic best 1586 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules management practices. The Agency is construction sites over 5 acres. Note that (see Section II.I.3, ‘‘Other Sources’’ interested in comments on how such an the Agency does not intend that below). Alternatively, municipal general exemption would work, what the incorporation by reference of qualifying permits could potentially reference criteria for such an exemption would be, programs would relieve construction provisions included in construction and the appropriate BMPs for such sites. site discharges ‘‘associated with general permits. As a practical matter, EPA also invites comment on industrial activity’’ from the applicable the controls for municipally-owned or recordkeeping requirements for today’s requirements of CWA section 301. operated construction would proposed rule regarding construction. EPA believes that this approach presumably dovetail with the The NPDES program requires that the would best balance the need for requirements of the municipal entity submitting the NOI keep its consideration of specific local minimum control measure for records on file for three years. Given requirements and local implementation construction, at least for sites between 1 that some smaller construction activities with the need for Federal and citizen and 5 acres (construction less than 5 may last less than a year, some oversight, and would extend acres would have to meet BAT). The recommendations suggest that this file supplemental NPDES requirements to Agency seeks further input on these retention requirement be modified or construction sites. EPA solicits possible approaches and others that deleted for such sites. EPA invites comment on this approach. could be considered. Specifically, how comment on appropriate and reasonable In a somewhat different context, would such an approach work, what recordkeeping requirements. municipal representatives would the permit look like, who would recommended that construction be covered, and what would be the d. Cross-Referencing State/Local Erosion activities undertaken by municipalities and Sediment Control Programs responsibilities of covered be covered by the municipal storm municipalities. In developing the permit water permit rather than under a In a similar vein, industrial requirements for designated separate, distinct storm water permit for representatives recommended that construction sites less than 5 acres, construction activity. The Agency agrees construction activities undertaken by members of the Storm Water Phase II that this would be a reasonable permitted industrial storm water FACA Subcommittee asked EPA to try approach. The Agency explored several facilities be covered by the industrial to minimize redundancy in the possible ways to make such an approach storm water permit. Again, the Agency construction permit requirements. As possible during the development of agrees with the concept. One option previously discussed in the today’s proposal, and feels that there are contemplated by the Agency would be Construction Site Storm Water Runoff some options that could achieve to include in industrial storm water Control discussion (see Section II.H.3.a., program objectives. One option would permits requirements for construction Minimum Control Measures), the be to simply relieve municipalities that undertaken by permitted industrial Agency is proposing to allow permitting would be covered under today’s facilities. Another option would be to authorities to incorporate by reference proposal of requirements to submit an cross-reference construction general the requirements of qualifying State, NOI for the general permit covering permit provisions in industrial general Tribal, or local erosion and sediment construction activity. Under this option, permits. The Agency seeks comment on control programs. The NPDES municipalities would still be subject to these possible approaches and others permitting authority would, of course, both types of permit, but would be that could be considered. retain the authority to deny coverage relieved of the paperwork associated under the general NPDES permit, with filing NOIs. This option might e. Alternative Approaches disapprove inclusion of alternative require a revision to existing As previously discussed, EPA also requirements in the general permit, and 122.28(b)(2)(v). Another option to examined size thresholds other than one could require that designated general address this concern would be to issue acre for regulation. Although a range of permit applicants apply for an individual permits to municipalities size thresholds was mentioned in individual NPDES permit. seeking such a ‘‘one-stop shopping’’ stakeholder comments, no data were EPA envisions that this incorporation approach that would include provisions offered to support such alternatives. The by reference approach would apply not covering the municipal storm water Agency solicits comments that would only to the proposed newly regulated program and construction activity assist the Agency in making an storm water discharges from conducted by the municipality. Under informed decision as to an appropriate construction sites between 1 and 5 such an option, municipalities might threshold related to environmental acres, but also to discharges from larger need to submit individual permit effect. Alternatively, the Agency also construction sites already covered by applications and the NPDES permitting solicits comment on an approach by the existing storm water regulations authority might have to issue many which only those construction sites provided the program meets best more municipal permits. Under a third located within urbanized areas would available technology (BAT) option, the general permit issued to be automatically subject to permitting requirements. Under existing small municipalities would include requirements. Under such an regulations, storm water discharges municipal storm water program alternative, small construction sites ‘‘associated with industrial activity’’ are requirements as well as construction outside urbanized areas would not be subject to the same technology-based site discharge components. This option required to be covered by an NPDES standards as any other discharge under would result in the issuance of a more permit unless specifically designated by the CWA (except publicly owned complex general permit than EPA the permitting authority on a case-by- treatment works and municipal separate currently envisions for small case basis. storm sewer systems) (see CWA section municipalities. This complexity could Some stakeholders asked EPA to 402(p)(3)(A)). The Agency invites be minimized, however, by organizing consider allowing storm water comment on whether the imposition of the general permit into distinct discharges associated with construction controls designed to satisfy the modules, one dealing with the six activities between 1 and 5 acres to be proposed § 122.34(b) would assure minimum measures, one with regulated solely under municipal storm compliance with CWA section municipal construction, and possibly water programs where discharges to a 402(p)(3)(A) for discharges from one with municipal industrial facilities municipal separate storm sewer system Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1587 are subject to a permit, rather than discharges ‘‘associated with industrial 15,000 square feet; or road building requiring construction site discharges to activity.’’ This option would have (does not include construction of be subject to both NPDES permit allowed for the coverage of each site by wooden roads for access to remote requirements and municipal program submittal of one NOI, thereby reducing locations); or construction of a requirements. Under such an approach, the paperwork burden substantially residential home that is part of a larger construction sites would only be subject without sacrificing accountability. This common plan of development or sale. to the requirements and oversight of a option would have applied to all Under the industrial proposal, such qualifying local program. The Agency regulated construction site discharges, ‘‘high intensity’’ small construction has described the ‘‘incorporation by regardless of size. Homeowners who would be subject to Federal storm water reference’’ approach of today’s proposal performed construction activities on regulations. The default, ‘‘low intensity’’ and the rationale for the proposed their own property would have been construction activity would not. approach elsewhere in this preamble. If exempt from the requirements for a Today’s proposal does not incorporate EPA adopted this ‘‘qualifying local permit under this option. This option these suggestions because the Agency program’’ alternative, construction site would have focused instead on the believes that regulation of storm water operators in qualifying municipalities construction ‘‘industry.’’ This option to protect water quality relates more to would not be subject to the also would have resulted in a different the disturbance of land surfaces (i.e., on requirements of an NPDES permit. The proposal for municipal programs to a two dimensional, roughly horizontal Agency solicits comment on this control construction site discharges. plane) rather than to the activity or particular alternative and seeks input Concerns with this option included reason for the land disturbance. EPA specifically on the effectiveness of local issues regarding: identification of the proposes to regulate storm water erosion and sediment control programs responsible parties onsite (e.g., whether discharges associated with construction in the absence of NPDES permits all parties could reasonably be held activity from smaller sites, not the incorporating such local programs. The responsible for all permit conditions) construction activity itself. EPA would Agency also solicits comment on the and site-by-site identification of consider this option in the final rule, appropriate qualifications to establish construction discharges for tracking however, if public comments for municipalities to qualify under such compliance with permit conditions. demonstrate that a ‘‘low intensity’’ an alternative. Such a change also would have affected exclusion would relate to the intensity EPA considered several other operators discharging storm water from of the surface disturbance. The second alternatives for controlling construction existing, larger regulated construction waiver opportunity EPA proposes today storm water discharges on sites less than sites by restructuring the entire does relate to the intensity of surface 5 acres, including state/local regulatory scheme to focus on the disturbance, and necessarily accounts implementation only, Federal ‘‘industry’’ of construction site for regional variation. The Agency, requirements/guidelines for local operators, thus creating significant therefore, invites comment on how to erosion and sediment control programs, confusion among regulated entities and define applicability provision to and State-developed requirements. disruption in regulatory processes. exclude ‘‘low intensity’’ surface Small entity representatives Nonetheless, EPA invites comment on disturbances associated with recommended that EPA only establish a the option to establish what would construction activity and still provide a voluntary program based on EPA amount to an NPDES-based ‘‘licensing’’ simple, workable regulation that accounts for regional variability. guidance, and perhaps including program for construction site operators incentives for small site operators. This EPA believes the approach proposed within an NPDES jurisdiction (usually would effectively translate into a in this proposal would provide EPA and within State or Tribal boundaries). program which would not require such the States with a more manageable sites to be covered by an NPDES permit Industrial stakeholders recommended program than the other alternatives unless they were specifically designated that the regulation of construction site discussed. The proposed approach by the permitting authority on a case-by- discharges under section 402(p)(6) should offer flexibility to State and local case basis. One commenter raised should distinguish between ‘‘low governments in managing their storm concerns that small site operators may intensity’’ small construction and ‘‘high water programs with little or no lack the resources to put together a good intensity’’ small construction. While interruption in the consistency of site plan, which would likely be EPA proposes case-by-case waiver current environmental management and required under the proposed approach. opportunities for small construction would assure appropriate tracking and EPA seeks comment on these discharges (i.e., the second waiver enforcement mechanisms. EPA requests alternatives, as well, including comment opportunity for predicted soil loss of comment on the appropriateness of the on how such programs have worked less than 2 tons/acre/year), the scope and requirements of this part of where they have been in effect. industrial commenters recommended today’s proposed storm water program. In evaluating options to administer that the designation of small the storm water control program for construction site discharges 3. Other Sources discharges from construction sites, EPA categorically distinguish and exempt In the National Water Quality considered an owner or operator ‘‘low intensity’’ construction activity Inventory, 1994 Report to Congress certification program that would have from the provisions of the proposed submitted by EPA pursuant to section allowed the owner or operator, or rule. The commenters recommended 402(p)(5), EPA examined the remaining authorized representative, of a that construction activities include unregulated point sources of storm construction firm to apply for coverage intense levels of clearing, grading and water for the potential to adversely once for all the firm’s activities in one excavating associated with projects affect water quality. Due to very limited jurisdiction for the term of the NPDES which meet the following criteria: national data on which to estimate permit. Focusing on operators in the clearing, grading and excavation pollutant loadings on the basis of ‘‘construction industry’’ (regardless of activities with a duration in excess of discharge categories, the discussion of the size of the construction site) would six months; and construction of single the extent of unregulated storm water have more closely paralleled the or multiple story office or industrial discharges is limited to an analysis of existing storm water program for buildings with a grade slab in excess of the number and geographic distribution 1588 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules of the unregulated storm water Group B consists of nearly one sources has a high potential for discharges. Therefore, EPA is not million facilities. EPA organized Group exposure of raw materials, intermediate proposing to designate any additional B sources into 18 sectors for the products, final products, waste unregulated point sources of storm purposes of the report to Congress. The materials, byproducts, industrial water on a nationwide, categorical basis. automobile service sector (e.g., gas/ machinery, or industrial activity to Instead, EPA is designating a category of service stations, general automobile rainfall, the Agency rated that category sources to be regulated based on case- repair, new and used car dealerships, of sources as having ‘‘high’’ potential for by-case post-promulgation designations car and truck rental) makes up more adverse water quality impact. EPA’s by the NPDES permitting authority. than one-third of the total number of application of the first criterion showed EPA did, however, evaluate a variety facilities identified in all 18 sectors. that a number of Group A and B sources of categories of discharges for potential EPA conducted a geographical have a high likelihood of exposure of designation in the report to Congress. analysis of the industrial and pollutants. EPA’s efforts to identify sources and commercial facilities in Groups A and Through application of the second categories of unregulated storm water B. The geographical analysis shows that criterion, EPA assessed the likelihood discharges for potential designation for the majority are located in urbanized that pollutant sources are regulated in a regulation under today’s proposal areas (see Section 4.2.2, Geographic comprehensive fashion under other started with an examination of Extent of Facilities, in the Report to environmental protection programs, approximately 7.7 million commercial, Congress). In general, about 61 percent such as programs under the Resource retail, industrial, and institutional of Group A facilities and 56 percent of Conservation and Recovery Act (RCRA) facilities identified as ‘‘unregulated.’’ In Group B facilities are located in or the Occupational Health and Safety general, the distribution of these urbanized areas. The analysis also Act (OSHA). If EPA concluded that the facilities follows the distribution of showed that nearly twice as many category of sources was sufficiently population, with a large percentage of industrial facilities are found in all addressed under another program, the facilities concentrated within urbanized urbanized areas as are found in large Agency rated that source category as areas (see page 4–35 of Storm Water and medium municipalities alone. having ‘‘low’’ potential for adverse Discharges Potentially Addressed by Notable exceptions to this water quality impact. Application of the Phase II of the NPDES Storm Water generalization included lawn/garden second criterion showed that some Program, EPA 833–K–94–002). This establishments, small unregulated categories were likely to be adequately examination resulted in identification of animal feedlots, wholesale livestock, addressed by other programs. two general classes of facilities with the farm and garden machinery repair, bulk After application of the third potential for discharging pollutants to petroleum wholesale, farm supplies, criterion, availability of nationwide data waters of the United States through lumber and building materials, on the various storm water discharge storm water point sources. The first agricultural chemical dealers, and categories, EPA concluded that available group (Group A) included sources that petroleum pipelines, which can data would not support any such are very similar, or identical, to frequently be located in smaller nationwide designations. While such regulated ‘‘storm water discharges municipalities or rural areas. data could exist on a regional or local associated with industrial activity’’ but In identifying potential categories of basis, EPA believes that permitting that were not included in the existing sources for designation in today’s authorities should have flexibility to storm water regulations because EPA notice, EPA considered designation of regulate only those categories of sources used SIC codes in defining the universe discharges from Group A and Group B contributing to localized water quality of regulated industrial activities. By facilities. Based on input from the Storm impairments. relying on SIC codes, which were not Water Phase II FACA Subcommittee, Therefore, today’s proposal does not classified according to environmental EPA applied three criteria to each propose to designate any additional impacts, some types of storm water potential category in both groups to industrial or commercial category of discharges that might otherwise be determine the need for designation: (1) sources. Rather, today’s proposal would considered ‘‘industrial’’ were not The likelihood for exposure of pollutant encourage control of storm water included in the existing NPDES storm sources included in that category, (2) discharges from Groups A and B water program. The second general class whether such sources were adequately through self-initiated, voluntary BMPs, of facilities (Group B) was identified on addressed by other environmental unless the discharge (or category of the basis of potential activities and programs, and (3) whether sufficient discharges) is individually or locally pollutants that could contribute to storm data were available at this time on designated as described in the following water contamination. which to make a determination of section. The necessary data to support EPA estimates that Group A has adverse water quality impacts for the designation could be available on a approximately 100,000 facilities. category of sources. As discussed local, regional, or watershed basis and Discharges from facilities in this group, previously, EPA searched for applicable would allow the NPDES permitting which may be of high priority due to nationwide data on the water quality authority to designate a category of their similarity to regulated storm water impacts of such categories of facilities. sources or individual sources on a case- discharges from industrial facilities, By application of the first criterion, by-case basis. If sufficient nationwide include, for example, auxiliary facilities the likelihood for exposure, EPA data become available in the future, EPA or secondary activities (e.g., considered the nature of potential could at that time designate additional maintenance of construction equipment pollutant sources in exposed portions of categories of industrial or commercial and vehicles, local trucking for an such sites. As precipitation contacts sources on a national basis. unregulated facility, such as a grocery industrial materials or activities, the EPA requests comment on the three- store) and facilities intentionally resultant runoff is likely to be pronged analysis used to assess the need omitted from existing storm water contaminated with pollutants. As the to designate additional industrial or regulations (e.g., treatment works with a size of these exposed areas increases, commercial sources and invites design flow of less than 1 million EPA expects a proportional increase in suggestions regarding watershed-based gallons per day, and landfills that have the pollutant loadings leaving the site. designation. EPA also requests not received industrial waste). If EPA concluded that a category of information regarding any available Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1589 national or local data on the potential as to any additional options. The assure progress toward compliance with water quality impacts of other currently Agency also seeks comment on any water quality standards in the unregulated point sources of storm implementation issues associated with watershed. EPA intends that the TMDL- water. this recommended approach. based waiver would be available Finally, storm water discharges from prospectively, applying to future 4. Residual Designation Authority facilities exempted by the Intermodal construction sites. This raises an issue Surface Transportation and Efficiency The NPDES permitting authority’s of how this waiver provision could be Act of 1991 (discharges from industrial existing designation authority, as well applied to such sites. activities other than power plants, as the petition provisions would be One of the industrial stakeholders on airports, and uncontrolled sanitary retained. The proposed rule contains the Storm Water Phase II FACA landfills that are owned or operated by two provisions related to designation Subcommittee questioned the Agency’s municipalities of less than 100,000 authority at §§ 122.26(a)(9)(i)(C) and (D). legal authority to provide for such people) were also identified as potential Subsection (C) would add designation residual designation authority. The sources for designation under today’s authority where storm water controls stakeholder argued that the lapse of the proposal. These facilities discharge are needed for the discharge based upon October 1, 1994, permitting moratorium storm water in the same manner (and wasteload allocations that are part of under section 402(p)(1) eliminated the are expected to use identical processes TMDLs that address the pollutants of significance of the section 402(p)(2) and materials) as the industrial facilities concern or upon a comprehensive exceptions to the moratorium, including regulated under the existing regulations. watershed plan implemented for the the exception for discharges of storm As such, these facilities would pose waterbody that includes the equivalents water determined to be contributing to similar water quality threats. The of TMDLs and addresses the pollutants a violation of a water quality standard extended moratorium for these facilities of concern. EPA intends that the NPDES or a significant contributor of pollutants was necessary to allow municipalities permitting authority would have under section 402(p)(2)(E). The additional time to comply with NPDES discretion in the matter of designations stakeholder further argued that EPA’s requirements. EPA proposes to maintain based on existing TMDLs under authority to designate sources for August 7, 2001, as the NPDES permit subsection (C) and would invite regulation under section 402(p)(6) is application deadline for such comment on the implementation of limited to storm water discharges other municipally owned or operated existing TMDLs as the basis for than those described under section facilities discharging industrial storm designation under today’s proposed 402(p)(2). Because section 402(p)(2)(E) water. General permits are available in storm water program. Subsection (D) describes individually designated States where EPA issues permits and would carry forward residual discharges, the stakeholder concluded should already be available for such designation authority under § 122.26(g) that regulations under section 402(p)(6) sources in most NPDES-authorized of the existing regulations. Under cannot provide for post-promulgation States. Based on advice and today’s proposal, EPA and authorized designation of individual sources. EPA recommendations of small entity States would continue to exercise the disagrees. representatives, EPA also invites authority to designate remaining First, as explained previously, EPA comment on whether permit unregulated discharges composed anticipates that NPDES permitting authorization for these discharges could entirely of storm water for regulation on authorities may yet determine that be combined with permit authorization a case-by-case basis (see proposed individual unregulated point sources of for other discharges from the municipal §§ 122.26(b)(15) and 123.35). The storm water discharges may require separate storm sewer system. standard for designation would be the regulation on a case-by-case basis. This Municipal representatives same as under the existing NPDES conclusion is consistent with the recommended to EPA that permit regulations for storm water. Individual Congress’ recognition of the potential requirements for municipally-owned or sources would be subject to regulation need for such designation under the first operated industrial facilities be if EPA or the State, as the case may be, phase of storm water regulation as included in municipal storm water determines that the storm water described in section 402(p)(2)(E). Under permits (this recommendation could be discharge contributes to a violation of a section 402(p)(2)(E), Congress extended to cover municipally-owned water quality standard or is a significant recognized the need for both EPA and construction activities, as well). As contributor of pollutants to waters of the the State to retain authority to regulate such, municipalities would be covered United States. This standard is based on unregulated point sources of storm by a single permit, rather than by two the text of section 402(p). In today’s water under the NPDES permit program. or more separate permits. The Agency proposed rule, EPA believes, as Second, to the extent that section agrees with the recommendation and is Congress did in drafting section 402(p)(6) requires designation of a considering options to implement it. 402(p)(2)(E), that individual instances of ‘‘category’’ of sources, EPA would One option would be to include relevant storm water discharge might warrant designate such (as yet unidentified) industrial storm water controls in the special regulatory attention, but do not sources as a category that should be municipal storm water permits for the fall neatly into a discrete, regulated to protect water quality. types of industrial facilities typically predetermined category. EPA does Though such sources may exist and owned or operated by municipalities. envision, however, that preservation of discharge today, if neither EPA nor the Another option would be to cross- such regulatory authority would be NPDES permitting authority has reference industrial storm water permit necessary to subsequently address a designated the source for regulation requirements in municipal storm water source (or sources) of storm water under section 402(p)(2)(E) to date, then permits. A third option would be to discharges of concern on a localized or section 402(p)(6) provides EPA with design an additional minimum control regional basis. As States and EPA authority to designate such sources. measure for municipal storm water implement TMDLs, for example, The Agency would make this programs that would address permitting authorities might need to designation of a category of ‘‘not yet municipally-owned or operated designate some of the point sources of identified’’ sources in order to ensure industrial facilities. The Agency seeks storm water not subject to regulation on that sources that should be regulated input on these options and suggestions categorical basis nationwide in order to based on local concerns could be 1590 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules regulated even if data does not exist to could result in the avoidance of future the court concluded that the exemption support nationwide regulation of such requirements. impermissibly ‘‘altered the statutory sources. EPA does not believe that the Finally, EPA evaluated the proposal scheme’’ for permitting because the language in section 402(p) should be under which owners or operators of exemption relied on the unverified interpreted to preclude States from regulated small, medium, and large judgement of the light industrial facility exercising designation authority under municipal separate storm sewer systems operator to determine non-applicability this category after promulgation of a would be responsible for controlling of the permit application requirements. final rule because any such designation discharges from industrial and other In other words, the court was critical (and subsequent regulation of facilities into their systems in lieu of that the operator would determine for designated sources) would be within the requiring NPDES permit coverage for itself that there was no exposure and ‘‘scope’’ of the NPDES program. the individual facilities. EPA does not then simply not apply for a permit EPA also believes that sources propose this framework due to concerns without any further action. Without a regulated pursuant to a State with administrative and technical basis for ensuring the effective operation designation would be part of (and burden on the municipalities, as well as of the permitting scheme—either that regulated under) a Federally approved concerns about such an facilities would self-report actual State NPDES program, and thus subject intergovernmental mandate. EPA does, exposure or that EPA would be required to enforcement under CWA sections 309 however, request comments on this to inspect and monitor such facilities— and 505. Under existing NPDES State approach. the court vacated and remanded the rule to EPA for further rulemaking (966 F.2d program regulations, State programs that J. Conditional Exemption for ‘‘No are ‘‘greater in scope of coverage’’ are at 1305). Exposure’’ of Industrial Activities and Under today’s proposal, the Agency not part of the Federally-approved Materials to Storm Water program. By contrast, any such State responds to both of the bases for the regulation of sources in this ‘‘reserved 1. Background court’s remand. First, the exemption category’’ would be within the scope of from permitting based on ‘‘no exposure’’ As noted previously, the 9th Circuit applies to all industrial categories listed the Federal program because today’s remanded to EPA for further rulemaking proposal would recognize the need for in the existing storm water regulations, a portion of the definition of ‘‘storm regardless of the type of industry. The such post promulgation designations of water discharge associated with unregulated point sources of storm court’s opinion rejected EPA’s industrial activity’’ that exempted the distinction between light industry and water. Such regulation would be ‘‘more category of industrial activity identified other industry, but it did not preclude stringent’’ than the Federal program as ‘‘light industry’’ (NRDC v. EPA, 966 an interpretation that treats ‘‘non- rather than ‘‘greater in scope of F.2d 1292, 1305 [9th Cir. 1992]). In exposed’’ industrial facilities in the coverage’’ (40 CFR 123.1(h)). addition to the rulemaking conducted same fashion. Presuming that an In addition, EPA does not interpret under section 402(p)(6) on August 7, industrial facility adequately precludes the congressional direction in section 1995, today’s proposal also responds to exposure of industrial materials and 402(p)(6) to preclude regulation of point that remand. In the 1990 storm water activities to storm water, EPA proposes sources of storm water that should be regulations, EPA exempted facilities in to treat discharges from ‘‘non-exposed’’ regulated to protect water quality. the category from the requirement for an industrial facilities in a manner similar Under CWA section 510, Congress NPDES permit if the industrial materials to the way Congress intended for expressly recognized and preserved the or activities were not ‘‘exposed’’ to discharges from administrative authority of States to adopt and enforce storm water (see 40 CFR 122.26(b)(14) buildings and parking lots; specifically, more stringent regulation of point [introductory text]). The Agency has permits would not be required on a sources, as well as any requirement reasoned that most of the activity at categorical basis. To assure that respecting the control or abatement of these types of facilities takes place discharges from industrial facilities pollution. Section 510 applies, ‘‘except indoors and that emissions from stacks, really are similar to discharges from as expressly provided’’ in the CWA. The use of unhoused manufacturing administrative buildings and parking CWA does expressly provide affirmative equipment, outside material storage or lots, and to respond to the second basis limitations on the regulation of certain disposal, and generation of large for the court’s remand, EPA proposes pollutant sources through the point amounts of dust or particles would be that the permitting exemption be source control program in section atypical (55 FR 48008, November 16, conditional. The person responsible for 502(14), which excludes agricultural 1990). a point source discharge from a ‘‘no storm water and return flows from The Ninth Circuit determined that the exposure’’ industrial source must meet irrigated agriculture from the definition exemption was arbitrary and capricious the conditions of the exemption and of point source, and section 402(l), for two reasons (966 F.2d at 1305). First, provide a certification pursuant to 40 which again limits applicability of the the court found that EPA had not CFR 122.22 for tracking and section 402 permit program for return established a record to support its accountability purposes. EPA believes flows from irrigated agriculture, as well assumption that light industry that was today’s proposal, therefore, is fully as for storm water runoff from certain not exposed to storm water was not consistent with the direction provided oil, gas, and mining operations. EPA ‘‘associated with industrial activity,’’ by the court. does not interpret section 402(p)(6) as particularly when other types of A major objective of the FACA an express provision limiting the industrial activity not exposed to storm Committee at the outset (August 1995), authority to designate point sources of water remained ‘‘associated with was to streamline and reinvent certain storm water for regulation on a case-by- industrial activity.’’ The court troublesome or problematic aspects of case basis after the promulgation of final specifically found that ‘‘[t]o exempt the existing storm water permitting regulations. Any source of storm water these industries from the normal program. One area identified was the is encouraged to assess its potential for permitting process based on an mandatory applicability of the storm water contamination and take unsubstantiated assumption about this permitting program to all industrial preventive measures against group of facilities is arbitrary and facilities, even those ‘‘light’’ industrial contamination. Such proactive actions capricious’’ (966 F.2d at 1305). Second, activities that are of very low risk or of Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1591 no risk to storm water contamination. Today’s proposal represents a and can cause equal damage to aquatic Such dischargers could have no significant expansion in the scope of the life and its habitat. The environmental industrial sources of storm water no-exposure provision originally groups believe that these storm water contamination on the industrial plant promulgated in the 1990 rule for only discharges should be permitted in the site, yet they are still required to acquire light industry. The intent of this same way that residential and an NPDES storm water permit and meet proposal is to provide industrial commercial storm water discharges are all permitting requirements. Examples facilities that are entirely indoors a permitted and that, otherwise, these of such facilities would be a soap simplified method of complying with discharges—their volume alone often manufacturing plant (SIC Code 28) or the CWA. This could include facilities destructive of aquatic life and habitat, hazardous waste treatment and disposal that are located within a larger office and containing conventional pollutants facility, where all industrial activities, building, or at which the only items as well—would escape the control even loading docks, are inside a permanently exposed to precipitation required under the CWA. building or under a roof. are roofs, parking lots, vegetated areas, The industry representatives support Committee members advised EPA that and other non-industrial areas or streamlining the existing storm water the existing storm water program activities. permitting program by exempting no- needed to be revised to allow such Although the FACA Committee exposure facilities. They believe that facilities to seek an exemption from the agreed in principle to the basic concept creating this exemption, however, does NPDES storm water permitting of this exemption, committee members not create in EPA the authority to requirements. Committee members could not resolve two significant issues regulate other activities not subject to agreed that such an exemption should related to the actual implementation of the existing storm water program. also provide a strong incentive for other the concept. The first issue relates to Industry representatives point out that industrial facilities that might conduct how to account for storm water runoff since 1990, the NPDES storm water some industrial activities outdoors from parking lots, roof tops, lawns, and permitting program has excluded exposed to rainfall and runoff to move other non-industrial areas of an administrative buildings, parking lots, the activities under cover or into industrial facility. These types of storm and other non-industrial areas from buildings to prevent contamination of water discharges, which may contain permitting or other regulatory rainfall and storm water runoff. The pollutants or which may result in excess requirements. The industry committee believed that such a no- storm water flows, are not directly representatives also reserved the right to exposure permit exemption provision regulated under the existing storm water address the legal authority provided by could be a valuable incentive for storm permitting program because they are not Congress to EPA to regulate the amount water pollution prevention. ‘‘storm water discharges associated with of storm water discharged from these Over approximately 2 years, the Phase industrial activity.’’ areas. Industry representatives believe I Improvement Work Group of the The second issue involves an that if Congress or EPA addresses the FACA Committee developed and industrial facility that achieves no issue of flow, it should be addressed on recommended to EPA the concept of a exposure by constructing large amounts a broader scale than merely through the no-exposure incentive provision, which of impervious surfaces, such as roofs no-exposure exemption. EPA is proposing by making a change to (where previously there were pervious Municipal representatives believe that the existing storm water rules and or porous surfaces into which storm EPA has no authority under any existing adding a new storm water rule water could infiltrate), which results in legal framework to regulate flow. provision, including a no-exposure a significant increase in storm water Developing federal parameters for the certification process as discussed below. volume flowing off the industrial control of flow would result in federal EPA relied upon the no-exposure facility and thus causes adverse intrusion into land use planning, an concept developed by the FACA receiving water impacts simply due to authority that they claim is solely Committee in developing today’s the increased quantity of storm water within the purview of State government proposal regarding ‘‘no exposure.’’ EPA flow. Although discussed extensively, and their political subdivisions. Local proposes to incorporate the the FACA Committee was not able to governments are aware of the impact recommendations of the committee by reach a consensus recommendation on that flows have on receiving waters and, deleting the sentence regarding ‘‘no how to fully address these two as has been well documented, take the exposure’’ for the facilities in remaining issues. appropriate steps to ameliorate negative § 122.26(b)(14)(xi) and adding a new From the perspective of the results within the context of locally section—§ 122.26(g) Conditional environmental groups on the committee, developed and agreed upon long-term Exemption for No Exposure of Industrial excessive storm water flows from an land use plans. Under no circumstances Activities to Storm Water. In accordance industrial site and pollutants from non- will local governments agree to share or with the committee’s recommendations, industrial areas of the site are cede this authority with or to federal the proposed no-exposure provision potentially a significant cause of agencies or departments. refers to all classes of industrial and receiving water impairment and, as Given the lack of consensus by the other facilities discharging storm water such, should not be allowed to occur as FACA Committee on these two that would be defined under existing a result of achieving no exposure and remaining key issues, EPA is soliciting § 122.26(b)(14), except construction gaining an exemption from an NPDES public comment on potential ways to defined under existing § 122.26(b)(14)(x) storm water permit. Environmental address these issues, if possible, in the and proposed § 122.26(b)(15)(i) and groups believe that storm water context of the proposed no-exposure sources individually designated under discharges from impervious areas at an exemption. §§ 122.26(a)(1)(v), 122.26(a)(9)(i)(B),(C), industrial facility are generally more In an effort to address the second & (D) and 122.26(g)(3). Thus, proposed frequent, and many of them larger, than issue the FACA Committee § 122.26(g) would make all classes of discharges from the preexisting natural recommended that the no-exposure 5- industrial facilities eligible for surfaces. These discharges will contain year certification form (discussed exemption from the identification as pollutants typical of commercial areas, below) should be modified to add an ‘‘associated with industrial activity’’ streets, and roads and are an equal additional question that asks the facility under the existing regulations. threat to direct human uses of the water operator to provide information 1592 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules indicating if large amounts of and storm water are covered under an emissions that could result in impervious surfaces were created to individual permit. identifiable levels of storm water qualify for the no-exposure exemption. contamination. Visible ‘‘track out’’ (i.e., 2. Definition of ‘‘No Exposure’’ To respond to the question, a series of pollutants carried on the tires of four boxes would be checked by the For purposes of this section, ‘‘no vehicles) or windblown raw materials facility operator indicating exposure’’ would mean that all would be deemed ‘‘exposed.’’ Leaking approximately how much impervious industrial materials or activities are pipes containing contaminants exposed area was created, if any, to achieve no protected by storm resistant sheltering to storm water would be deemed exposure. These boxes would be (1) so that they are not exposed to rain, ‘‘exposed,’’ as would past sources of none, (2) less than 1 acre, (3) 1 to 5 snow, snowmelt, or runoff. Industrial storm water contamination that remain acres, and (4) more than 5 acres. This materials or activities would refer to onsite. General refuse and trash, not of question would provide additional those activities or materials described an industrial nature, would not be information that would help the NPDES under § 122.26(b)(14) (e.g., material considered exposed industrial materials. permitting authority determine whether handling equipment, industrial While the intent of this provision is or not an NPDES storm water permit machinery, raw materials, intermediate to promote permanent no exposure, EPA should be required for the facility. products, byproducts, or industrial understands that certain machinery, In order to be covered under the no- waste products, however packaged). such as trucks, could pass between exposure provision, EPA proposes that Barrels, drums, dumpsters, and other buildings and, during passage, would be an owner or operator of an otherwise packaging containing industrial wastes exposed to rain and snow. Adequately regulated facility would need to submit are inherently prone to leak and maintained mobile equipment (e.g., to the NPDES permitting authority the therefore could be a source of exposure, trucks, automobiles, trailers, or other no exposure form certifying that the thereby precluding the facility from such general purpose vehicles found at facility meets the no-exposure qualifying for the exemption. the industrial site that are not industrial requirements (see Appendix 4 for the The FACA Committee held lengthy machinery or material handling Draft No Exposure Certification Form). discussions on the definition of no equipment and that are not leaking This requirement would apply across all exposure pertaining to barrels, drums, contaminants or are not otherwise a categories of industrial activity covered dumpsters, and other packaging source of industrial pollutants) could be by the existing program, except containers. The committee could not exposed to precipitation or runoff. Such discharges associated with construction agree on whether barrels, drums, activities alone would not prevent a activity, and would include those dumpsters, and other packaging facility from being able to certify no facilities currently in § 122.26(b)(14)(xi) containers that are outdoors should exposure under this provision. (’’light industry’’) that are not permitted trigger the disqualification of an Similarly, trucks or other vehicles based upon a claim of ‘‘no exposure.’’ industrial facility from the no-exposure located at vehicle maintenance facilities The category (xi) ‘‘light’’ industrial exemption. One perspective expressed awaiting maintenance, as defined at 40 facilities that claim to have no exposure was that any such containers that are CFR 122.26(b)(14)(viii), that are not of materials to storm water are not stored outdoors should constitute leaking contaminants or are not required under the existing regulations exposure and the need for a permit, otherwise a source of industrial to submit any type of form to the whether or not they are leaking. The pollutants, would not be considered permitting authority, but would need to opposing perspective was that exposed. submit a certification under today’s containers should be allowed to be In addition, EPA recognizes that other proposal. The facility would need to stored outdoors and not be considered instances could occur where permanent allow the NPDES permitting authority exposure as long as they were not no exposure of industrial activities or or operator of a municipal separate actually leaking. The committee also materials is not possible and, therefore, storm sewer system (where there is a discussed the concept of ‘‘potential to is proposing that under such conditions, storm water discharge to the municipal leak’’ as a trigger for exposure, but could materials and activities be covered with system) to inspect the facility and to not agree on this approach. Therefore, temporary covers, such as tarps, make such inspection reports publicly EPA is soliciting public comment on between periods of permanent available, upon request. In addition, this issue and the approach proposed in enclosure. This proposal would not based on committee recommendations, today’s rule. specify every such situation, instead EPA proposes that the certification The term ‘‘storm resistant shelter’’ is EPA intends that permitting authorities would require only minimal amounts of intended to include completely roofed would address this issue on a case-by- information from the facility claiming and walled buildings or structures, as case basis. Permitting authorities could the no-exposure exemption. The NPDES well as structures with only a top cover determine the circumstances under permitting authority would maintain a but no side coverings, provided material which temporary structures would or simple registration list that should under the structure is not otherwise would not meet the requirements of this impose minimal administrative burden, subject to any run-on and subsequent section. Until permitting authorities but that would allow for tracking of runoff of storm water. For purposes of determined otherwise, temporary industrial facilities claiming the this provision, emissions from roof coverage of industrial materials or exemption. stacks/vents that are regulated and in activities would be allowable under this EPA envisions the NPDES storm compliance under other environmental section during facility renovation or water program to be implemented protection programs and that do not construction, provided the temporary primarily through general permits and cause storm water contamination would cover achieved the intent of this section. the no exposure certification to be be considered not exposed. EPA Moreover, exposure that results from a submitted at the ‘‘beginning’’ of each requests comment on the scope of roof leak in protective covering would only permit term. However, EPA invites stacks/vents that would be covered by be considered exposure if not corrected comment on situations that may affect this provision. EPA welcomes, in prior to the next storm water discharge the timing of submission of the no particular, any suggestions as to ways in event. exposure certification, for example, in which this provision might be narrowed While the intent of this proposal cases where a facility’s process water so as to focus on significant stack would be to reduce the regulatory Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1593 burdens on industrial facilities and impervious area of the site, the facility committee members regarding this government agencies, the FACA operator would need to provide provision, EPA is also inviting public Committee suggested that the NPDES information on this in the certification comment on this aspect of the no permitting authority should consider a form discussed above. Using this exposure incentive. compliance assessment program to information, and other available data EPA envisions that general permits ensure that facilities that have availed and information, permitting authorities would be used to implement the themselves of this no-exposure option should be able to assess whether any program and that the owner or operator meet the applicable requirements. major change has resulted in increased would submit a written certification to Inspections would be conducted at the pollutant concentrations or loadings, the permitting authority once every 5 discretion of the NPDES permitting toxicity of the storm water runoff, or a years at the ‘‘beginning’’ of the permit authority and would likely be change in natural hydrological patterns term or prior to commencing discharges coordinated with other facility that would interfere with the attainment during a permit term. Upon request, the inspections. EPA expects, however, that and maintenance of water quality owner or operator would also need to the permitting authority would conduct standards, including designated uses or submit a copy of the certification to the inspections when it became aware of appropriate narrative, chemical, municipality in which the facility is potential water quality impacts possibly biological, or habitat criteria where such located. EPA invites comment on caused by the facility’s storm water State water quality standards exist. In situations that may affect the timing of discharges or when requested to do so these instances, the facility operator and submission of the certification. For by affected members of the public. The their NPDES permitting authority example, some States are transitioning intent of this provision would be that should take appropriate actions to toward ‘‘specific’’ general permits the 5-year no-exposure certification be ensure that attainment or maintenance (industry or watershed-based), and to fully available to, and enforceable by, of water quality standards can be the extent possible, to individual appropriate federal and State authorities achieved. The NPDES permitting permits—making it likely that more under the CWA. Private citizens could authority could determine the need for than one general permit may be enforce against facilities for discharges the facility to obtain coverage under an applicable to a given facility and raising of storm water that are inconsistent with individual permit or a general permit to an issue as to when to submit a ‘‘no a no-exposure certification if storm ensure that appropriate actions are exposure’’ certification. water discharges from such facilities are taken to address water quality impacts. Once a facility operator has not otherwise permitted. established that the facility meets the The FACA Committee recommended Another issue that the FACA definition of no exposure, it would be that the certifying party not allow any Committee discussed but was unable to imperative that the operator of the actions taken to qualify for this reach consensus on was whether or not facility maintains the no-exposure provision to result in a net the facility operator should bear the condition. Failure to do so would result environmental detriment. The phrase burden of determining whether the in the unauthorized discharge of ‘‘no net environmental detriment,’’ activities undertaken to achieve no pollutants to waters of the United however, seemed too imprecise a phrase exposure impact, or have the potential States, which could result in penalties to use within this context. Therefore, to impact, water quality standards, or under the CWA. Where a facility EPA is proposing to implement this whether the NPDES permitting operator determines that exposure recommendation by requiring that authority should be responsible for would occur in the future due to some actions taken to qualify for this making that determination. Some anticipated change at the facility, the provision shall not interfere with the members of the FACA Committee operator would need to submit an attainment or maintenance of water indicated that facility operators are not application and acquire storm water quality standards, including designated sufficiently trained to conduct water permit coverage prior to such discharge uses. Permitting authorities would be quality impact assessments, nor privy to to avoid such penalties. able, where necessary, to make a the necessary information, and, 3. Options Considered determination by evaluating the therefore, would not be able to make activities changed at the industrial site these determinations. Similarly, these In the course of the ‘‘no-exposure to achieve no exposure and assess members highlighted that under the dialogue,’’ the FACA Committee whether these changes adversely existing NPDES permitting program, the considered a number of options for impact, or have the potential to impact, NPDES permitting authority appears to implementing the no-exposure water quality standards, including have this responsibility (see 40 CFR provision, including regulating designated uses. EPA anticipates that 122.44(d)). Other committee members qualifying industrial facilities by (1) an most efforts to achieve no exposure explained that only the facility operator NPDES general permit for no-exposure would employ simple good would know exactly what changes were facilities, (2) a no-exposure permit by housekeeping and contaminant cleanup made at the industrial site to achieve no rule, (3) a modification of the definition activities. Other efforts could involve exposure and, therefore, should make of ‘‘storm water associated with moving materials and industrial the determination. Other committee industrial activity’’ such that industrial activities indoors into existing buildings members were concerned that these facilities without exposure could or structures. determinations would place an instead be covered under the In very limited cases, industrial extensive burden on permitting requirements of a new or different storm operators could make major changes at authorities. In today’s proposed rule, the water program, and (4) a watershed a site to achieve no exposure. These NPDES permitting authority would have approach to no exposure. The FACA efforts could include constructing a new the primary responsibility for Committee did not fully support any of building or cover to eliminate exposure determining potential or actual water these options. or constructing structures to prevent quality impacts; however, this Some committee members thought run-on and storm water contact with determination would be based upon that options 1 and 2 provided little industrial materials or activities. Where specific information that the operator incentive to achieve no exposure. major changes were undertaken to would be required to provide. Given the However, Option 1 was considered the achieve no exposure that increase the differing opinions expressed by most enforceable, and Option 2 was 1594 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules considered to have the advantage of help ensure a beneficial and workable 1,000 or more. The NPDES permitting enforceability and potential for reduced program for all involved. The public is authority must make a final administrative burden. encouraged to contact the NPDES determination within 180 days of Under Option 3, the definition of permitting authority or local municipal receiving a petition. ‘‘discharge associated with industrial separate storm sewer operator for Public involvement and participation activity’’ at § 122.26(b)(14) would be information on the municipal storm pose challenges, however. It requires a modified such that facilities with no water program and ways to participate. substantial initial investment of staff exposure could lose their status as Such information may also be available and financial resources, which could be ‘‘storm water discharges associated with from local environmental or other very limited. Even with this investment, industrial activity’’ under the existing public advocacy groups. the public might not be interested in regulations. Rather, these facilities EPA is inviting comment regarding participating. In addition, public would become storm water dischargers the appropriate role of the public in a participation could slow down the under today’s proposed rule and would municipal storm water program, and the decisionmaking process. Nevertheless, be required to do whatever the final best approach that EPA can take in the EPA believes the public is vital to the section 402(p)(6) regulation required. final regulation to provide appropriate long-term success of the municipal This option would not track, however, recognition of this role and storm water program and strongly the proposed requirements of today’s involvement. The advantages of active encourages public involvement and rule because the rule would not impose public involvement include reduced participation. any requirements on undesignated pollutant loadings, increased program In response to comments from the sources. EPA anticipates that permitted support, and vigilant protection of Storm Water Phase II FACA sources would be expected to comply waterbodies. Some examples of such Subcommittee, EPA believes it is with requirements similar to those for involvement follow. First of all, the important for the public to seek industrial facilities permitted under the public may be subject to local storm administrative remedies before filing existing storm water program. Option 4 water program requirements, guidelines, civil suit under section 505 of the CWA. had virtually no support. and financial costs. For example, the EPA also received comments stressing public could be subject to a local the need to suggest to the public that K. Public Involvement/Public Role ordinance that prohibits dumping used they have a responsibility to fund the The Phase II Subcommittee discussed oil down storm sewers. In addition, municipal storm water program. While the appropriate role of the public in members of the public might choose to EPA believes it is important that the successful implementation of a participate as actively involved partners program be adequately funded, as a municipal storm water program. The in program planning, development, and federal agency it cannot take a position Subcommittee generally agreed that a implementation (e.g., participate in on the appropriate mechanism or level successful municipal storm water public meetings and other opportunities for such funding. program requires an educated and for input, perform lawful volunteer L. Water Quality Issues actively involved public. Although monitoring, assist in program efforts to educate and involve the public coordination with other preexisting and The CWA combines a technology- consume limited staff and financial related programs, report suspected based approach with a water quality- resources, the benefits are numerous. violators to the municipal, State, or based approach to ‘‘restore and maintain An educated public increases program Tribal authorities), aid in the the chemical, physical, and biological compliance from residents and development and distribution of integrity of the Nation’s waters . . . .’’ businesses as they realize their educational materials, and provide EPA and most States issue NPDES individual and collective responsibility public training activities. In addition, permits to point source discharges of for protecting water resources. For the public could protect waterbodies by pollutants to meet the technology-based instance, an educated and motivated taking civil action under section 505 of and water quality-based requirements of public could reduce pollutant loadings the CWA against any person who is the act. Technology-based requirements by limiting the use of garden chemicals. alleged to be in violation of an effluent are the minimum level of control and Moreover, an educated public is more standard or permit condition. In such are generally applicable nationwide. likely to understand the environmental situations, members of the public would When the technology-based controls are benefits of a municipal storm water be strongly encouraged, however, to not sufficient for the waterbody to program and, therefore, may be more resolve any disagreements or concerns support the water quality standards that willing to fund such a program. The directly with the parties involved, either States or Tribes adopted for their waters, program is also more likely to receive informally or through any available the CWA requires development of more public support and participation when alternative dispute resolution process. stringent permit limits and control the public is actively involved from the The public could also petition the programs to ensure compliance with program’s inception and allowed to NPDES permitting authority to require water quality standards. participate in the decisionmaking an NPDES permit for a discharge process. In a time of limited staff and composed entirely of storm water that 1. Water Quality Standards financial resources, public volunteers contributes to a violation of a water Water quality standards are the offer diverse backgrounds and expertise quality standard or is a significant cornerstone of a State’s or Tribe’s water that may be used to plan, develop, and contributor of pollutants to waters of the quality management program. States implement a program that is tailored to United States. In evaluating such a and Tribes adopt water quality local needs. The public’s participation petition, the NPDES permitting standards for waters within their is also useful in the areas of information authority would be encouraged to jurisdictions. Water quality standards dissemination/education and reporting consider the set of designation criteria define a use for a waterbody and of violators, where large numbers of developed for the evaluation of the describe the specific water quality community members can be more small municipal separate storm sewer criteria to achieve that use. Examples of effective than a few regulators. The systems located outside of an urbanized designated uses are recreation and public may undertake several roles in area in places with a population of at protection of aquatic life. Water quality the municipal storm water program to least 10,000 and a population density of criteria can include chemical, physical, Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1595 or biological parameters, expressed as requirements, including 40 CFR 122.44 the Interim Permitting Approach when either numeric limits or narrative in establishing appropriate permit developing its storm water program. For statements. The water quality standards terms. EPA intends to issue NPDES a discussion of appropriate monitoring also contain antidegradation policies to permits consistent with the August 1, activities, see Section II.L.4. below. protect existing uses and high quality 1996, Interim Permitting Approach 2. Total Maximum Daily Loads water. The antidegradation policy guidance (61 FR 43761, November 6, ensures that water quality 1996.) This guidance describes the A TMDL analysis includes the improvements are conserved, interim permitting approach as follows: determination of the relative maintained, and protected. States and contributions of pollutants from point, In response to recent questions regarding nonpoint, and natural background Tribes review their water quality the type of water quality-based effluent standards every 3 years and, if limitations that are most appropriate for sources, including a margin of safety of appropriate, revise them. Water quality National Pollutant Discharge Elimination pollutants that can be discharged to a standards provide the goals for the System (NPDES) storm water permits, the water quality-limited waterbody to meet waterbody, serve as the regulatory basis Environmental Protection Agency (EPA) is water quality standards. More of water quality management programs, adopting an interim permitting approach for specifically, an allowable TMDL is and are benchmarks by which success is regulating wet weather storm water defined as the sum of the individual ultimately gauged for a given waterbody discharges. Due to the nature of storm water wasteload allocations for existing and discharges, and the typical lack of or watershed. future point sources (including storm information on which to base numeric water water) and load allocations for existing EPA recognizes that urban runoff is quality-based effluent limitations (expressed not the only contributor of pollutants as concentration and mass), EPA will use an and future nonpoint sources (including and other stressors to urban waterways. interim permitting approach for NPDES diffuse runoff and agricultural storm Controls on urban runoff, however, storm water permits. water) and natural background materials represent an opportunity to prevent or The interim permitting approach uses best with a margin of safety incorporated to capture a significant portion of the management practices (BMPs) in first-round account for uncertainty in the analysis. pollutants that are causing or storm water permits, and expanded or better- TMDLs are required in the CWA section contributing to violations of water tailored BMPs in subsequent permits, where 303(d)(1) for waters that will not quality standards, including impairment necessary, to provide for the attainment of achieve water quality standards after water quality standards. In cases where of designated uses. Storm Water Phase implementation of technology-based adequate information exists to develop more controls. These provisions have been II FACA Subcommittee municipal specific conditions or limitations to meet representatives expressed concern that water quality standards, these conditions or codified in 40 CFR 130.7. municipalities not be liable for loadings limitations are to be incorporated into storm The Part 130 regulations were attributable to other sources. Today’s water permits, as necessary and appropriate. designed to implement CWA sections proposal contains provisions that This interim permitting approach is not 106, 205(g), 205(j), 208, 303, and 305, establish a BMP-based program with intended to affect those storm water permits which address ambient water quality measurable goals that must meet the that already include appropriately derived monitoring and planning for standard of MEP and protect water numeric water quality-based effluent implementation, including funding and quality. In the first two to three rounds limitations. Since the interim permitting periodic reporting of ambient water approach only addresses water quality-based of storm water permits, EPA envisions quality for the development of a effluent limitations, it also does not affect national inventory. Section 130.5 that this would be the extent of the technology-based effluent limitations, such municipal requirements for a large as those based on effluent limitations describes a continuing water quality majority of regulated entities. If guidelines or developed using best planning process designed to implement additional specific measures to protect professional judgment, that are incorporated CWA section 303(e). Of particular water quality were imposed, they would into storm water permits. significance for an alternative State likely be the result of an assessment Each storm water permit should include a storm water management program based on TMDLs, or the equivalent of coordinated and cost-effective monitoring described above are the provisions of TMDLs, where the proper allocations program to gather necessary information to § 130.6, which describes water quality would be made to all contributing determine the extent to which the permit management planning under sections provides for attainment of applicable water sources. EPA believes that the 208 and 303. The water quality quality standards and to determine the management regulations specify some of municipality’s additional requirements, appropriate conditions or limitations of if any, should be guided by its equitable subsequent permits. Such a monitoring the elements of water quality share based on a variety of program may include ambient monitoring, management, including provisions for considerations, such as cost receiving water assessment, discharge point and nonpoint source management effectiveness, proportionate monitoring (as needed), or a combination of and control. The nonpoint source contribution of pollutants, and ability to monitoring procedures designed to gather management elements include, for reasonably assume wasteload necessary information. example, regulatory and nonregulatory reductions. This interim permitting approach applies programs, activities, and BMPs for a only to EPA; however, EPA also encourages variety of sources, including urban a. Permitting Policy authorized States and Tribes to adopt similar storm water (see 40 CFR As a result of today’s proposed policies for storm water permits. This interim 130.6(c)(4)(iii)(G)). State representatives permitting approach provides time, where regulation, NPDES general permits that necessary, to more fully assess the range of have suggested that requirements for would be issued to owners or operators issues and possible options for the control of State storm water management under of regulated small municipal separate storm water discharges for the protection of section 402(p)(6) could derive from, and storm sewer systems, as well as storm water quality. This interim permitting be developed through, these water water discharges associated with other approach may be modified as a result of the quality management provisions of Part activity, will be the primary mechanism ongoing Urban Wet Weather Flows Federal 130. EPA is not proposing any used to implement these requirements. Advisory Committee policy dialogue on this amendments to the Part 130 regulations As is the case in the issuance of any subject. at this time, but is inviting comment on NPDES permit, the permitting authority EPA would encourage authorized States how the existing Part 130 regulations would use its NPDES program and Tribes to adopt policies similar to could be used to support the proposed 1596 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

State alternative program described in wet weather surveys. States should also entitled ‘‘A Watershed Alternative.’’ The this proposal. include monitoring for NPDES, TMDL, policy approach described in the TMDL analyses include estimates of and section 305(b) activities. Finally, Watershed Alternative would promote a loadings from storm water discharges. the State should describe how these watershed-based assessment as an Load reductions obtained through the activities were integrated to provide all essential element of watershed-based implementation of BMPs required in the information necessary to support the programs for protecting water quality. NPDES program for storm water should State water quality management The Watershed Assessment paper be reflected in the TMDL analysis. programs. Specific elements amplifies this element, describing Through the TMDL analysis, the relative recommended for State monitoring varying levels of resources and contribution of storm water discharges program work plans include stakeholder needs for developing within a watershed will be determined. identification of indicators to be used to watershed assessment plans. It also EPA has formed a Federal Advisory measure progress toward goals and acknowledges the importance of Committee to provide advice to EPA on reference conditions for baselines; designing each assessment plan to identifying water quality-limited identification of methods used; address specific stakeholder interests. waterbodies, establishing TMDLs for identification of water quality problems; The paper states that each plan should them as appropriate, and developing sampling and laboratory analytical include unique assessment goals and appropriate watershed protection support with a field manual and quality objectives, selected baseline, sampling programs for these impaired waters in assurance/quality control (QA/QC) methods, procedures for analysis, record accordance with section 303(d). The plans; provisions for data storage, keeping and reporting, and schedules committee operates under the auspices management, and sharing; training and for periodic evaluation. Additionally, of the National Advisory Council for support for all involved persons, the paper sets out the various roles and Environmental Policy and Technology including volunteer reporting through responsibilities of stakeholders. Also, it (NACEPT). the section 305(b) process; and annual contains an expansive bibliography that 3. Anti-Backsliding program evaluation. gives resource managers suggested As part of EPA’s efforts to further references to aid them in carrying out In general, the term ‘‘anti- implementation of urban wet weather each stage of the watershed assessment backsliding’’ refers to statutory and programs using a watershed approach, plan. regulatory provisions at CWA sections the Agency is working to develop a 303(d)(4) and 402(o) and 40 CFR practical approach to monitoring that III. Paperwork Reduction Act 122.44(l) that prohibit the renewal, would provide meaningful results. The information collection reissuance, or modification of an Under today’s approach, assessment, requirements in this proposed rule have existing NPDES permit to contain evaluation, and recordkeeping been submitted for approval to the effluent limits, permit terms, limitations requirements beyond those required by Office of Management and Budget and conditions, or standards that are the NPDES regulations would be left to (OMB) under the Paperwork Reduction less stringent than those established in the discretion of the NPDES permitting Act, 44 U.S.C. 3501 et seq. EPA the previous permit. There are, authority. The NPDES permitting prepared an Information Collection however, exceptions to this prohibition authority (EPA or the authorized State Request (ICR) document (ICR (known as ‘‘antibacksliding or Tribe) would determine monitoring No.1820.01), a copy of which may be exceptions’’), which are also presented requirements in accordance with State obtained from Sandy Farmer, OPPE in sections 303(d)(4), 402(o) and 40 CFR or Tribe monitoring plans appropriate to Regulatory Information Division; U.S. 122.44(l). the watershed. For purposes of today’s Environmental Protection Agency The issue of backsliding from prior proposal, EPA recommends that, in (2137); 401 M Street, S.W.; Washington, permit limits, standards, or conditions general, small municipalities not be D.C. 20460, or by calling (202) 260– is not expected to initially apply to most required to conduct in the first permit 2740. storm water dischargers designated term any additional monitoring beyond Information collection requirements under today’s proposal because they any they may be already performing. In under this proposed rule would include generally have not been previously the second and subsequent permit requirements to submit an NPDES authorized by an NPDES permit. terms, EPA expects that some limited permit application or notice for However, the backsliding prohibition ambient monitoring might be coverage under an NPDES general would apply if a storm water discharge appropriately required for perhaps half permit, as well as to comply with was previously covered under another of the regulated small municipal applicable recordkeeping and reporting NPDES permit. Also, the antibacksliding separate storm sewer systems. However, requirements. Under the proposed rule, prohibition could apply when an EPA encourages participation in certain construction sites under 5 acres NPDES storm water permit is reissued, monitoring programs appropriate to and small regulated municipal separate renewed, or modified. In most cases, watershed protection. The permitting storm sewer systems would be required however, EPA does not believe that authority may wish to consult the to retain records of data used to these provisions would restrict revisions recommendations made in the report complete their NPDES permit to storm water NPDES permits. prepared by the Intergovernmental Task applications or NOIs. In addition, small Force on Monitoring Water Quality regulated municipal separate storm 4. Monitoring (ITFM). For further discussion regarding sewer systems would be required to EPA encourages States to provide a monitoring activities and the ITFM submit annual reports in the first permit multiyear monitoring strategy in their report, see Section II.H.3.c, Evaluation term and reports in years 2 and 4 in CWA section 106 grant application to and Assessment. subsequent permit terms. provide the framework for State/EPA EPA and the FACA Committee have Under the proposed rule, the owners agreement on the States’ annual work developed a paper entitled ‘‘Watershed or operators of regulated small plans. The strategy should include both Assessment: A Critical Tool for municipal separate storm sewer systems ambient and program-specific Stakeholders’’ (November 7, 1997) would be required to submit reports monitoring activities for nonpoint which is intended to supplement a draft containing information which the sources, lakes, estuaries, wetlands, and watershed-based policy statement permitting authority could use to assess Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1597 the effectiveness of individual storm imposed under this proposed rule systems for the purposes of collecting, water programs. This information could would be mandatory, pursuant to validating, and verifying information, be further used at the time of permit section 402. processing and maintaining renewal to ensure that appropriate Exhibit 3 presents annual and average information, and disclosing and measures would be taken by the owner total burden and cost estimates for providing information; adjust existing or operator to revise its storm water Phase II respondents (for 3 years under ways for complying with any previously program as needed. Information that the Paperwork Reduction Act). Burden applicable instructions and might be contained in the reports means the total time, effort, or financial requirements; train personnel to be able includes monitoring data, and a self- resources expended by persons to to respond to a collection of assessment of progress toward pollutant generate, maintain, retain, or disclose or information; search data sources; reduction or programmatic goals which provide information to or for a Federal complete and review the collection of were established as permit conditions. agency. This includes the time needed information; and transmit or otherwise Compliance with the applicable to review instructions; develop, acquire, information collection requirements install, and utilize technology and disclose the information.

EXHIBIT 3.ÐANNUAL AND AVERAGE ANNUAL TOTAL BURDEN ESTIMATES FOR PHASE II RESPONDENTS [For 3 years under the Paperwork Reduction Act]

Projected Estimated Projected an- burden hours Projected an- Activity respondents nual burden 1 per 1 nual cost ($) per year respondent (Hrs)

I. Construction Sources: Notice of Intent ...... 95,889 1.0 95,889 $2,876,670 Development of SWPPPs ...... 95,889 14.6 1,399,979 47,361,303 Individual Application ...... 0 9.1 0 0 Recordkeeping ...... 95,889 0.1 9,589 211,243 Notice of Termination ...... 95,889 0.5 47,945 765,674

Annual Subtotal ...... 1,554,361 51,214,890 II. Small Regulated Municipalities: Notice of Intent ...... 4,154 40 166,160 4,341,761 Individual Application ...... 0 88.2 0 0 Co-Applicant Application ...... 0 146 0 0 Retention of Records ...... 4,154 1 4,154 108,544 Annual Report Preparation and Submittal ...... 4,154 21 87,234 2,279,424

Year 1 Subtotal ...... 257,548 6,729,729

Years 2 and 3 Annual Subtotal (i.e., not including applications)2 ...... 91,388 2,387,968

Average Annual Burden and Cost3 ...... 146,775 3,835,222

Average Annual Program Total4 ...... 1,701,135 55,050,112 1 Totals may not add because of rounding. 2 Retention of Records (4,154) + Annual Report Preparation and Submittal (87,234) = Years 2 and 3 Annual Subtotal (91,388). 3 Average annual cost for the municipal component of the program is calculated by taking the year 1 subtotal (i.e., applications plus retention of records and annual report preparation and submittal; $6,729,729) plus the average total for each of the years 2 and 3 (recordkeeping plus an- nual report preparation and submittal, i.e., 2 x $2,387,968), which equals $11,505,665. This is divided by 3 (the number of years the ICR is valid) to equal $3,835,222. 4 Burden total calculated as the sum of the construction source annual subtotal plus the municipal average annual burden. Cost total calculated as the sum of the construction source annual subtotal and the municipal average annual cost.

Given the requirements of today’s is acting as the NPDES permitting estimated to be 241,282 hours for proposed regulation, there would be no authority in States, Tribes, and authorized States and 38,933 for the capital and no operations and Territories that are not authorized to Federal government, for a total of maintenance costs associated with administer the NPDES program. As of 280,215. This estimate is based on the information collection requirements of May 1997, 42 States and the Virgin average time that governments would the rule. Similarly, there would be no Islands had NPDES authority. EPA expend to carry out the following capital/startup or operating and estimates that 96,962 construction starts activities: review, respond to, and enter maintenance costs associated with the and 3,749 small municipal separate a construction NOI into a data base (1 information collection requirements of storm sewer systems would be regulated hour); review and enter a Notice of the rule. within authorized governmental Termination (NOT) into a data base (0.5 The government burden associated entities. EPA estimates that 18,815 hours); process permit applications from with the proposed extension of the construction starts and 405 small existing storm water program would municipal separate storm sewer systems owners or operators of regulated small impact State, Tribal, and Territorial would be regulated in non-authorized municipal separate storm sewer systems governments (NPDES-authorized States, Tribes, and Territories. using the NOI (4 hours); issue permits governmental entities) that have storm The estimated burden that would be to regulated small municipal separate water program authority, as well as the imposed upon authorized governmental storm sewer systems (160 hours); and Federal government (i.e., EPA), where it entities and the Federal government is review annual reports submitted by 1598 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules regulated small municipal separate savings would be based on relief from Planning and Review, (58 FR 51735, storm sewer systems (30 hours). all existing compliance requirements for October 4, 1993) the Agency must Today’s proposed rule also would those industrial facilities that qualify. determine whether the regulatory action include a conditional exemption from The net impact of the proposed no is ‘‘significant’’ and therefore subject to the existing storm water permit exposure provision for regulated OMB review and the requirements of application requirements for industrial industrial facilities would be an annual the executive order. The order defines facilities that can certify that their net savings ranging from $89 million to ‘‘significant regulatory action’’ as one industrial materials or activities have no $2,499 million. The total cost to Federal that is likely to result in a rule that may: exposure to storm water. This and State governments would range (1) Have an annual effect on the exemption would be conditioned upon from $0.6 to $1.1 million annually. economy of $100 million or more or the owner or operator certifying that An agency may not conduct or adversely affect in a material way the their facility meets the no exposure sponsor, and a person is not required to economy, a sector of the economy, requirements. Because the information respond to a collection of information productivity, competition, jobs, the collection burden associated with this unless it displays a currently valid OMB environment, public health or safety, or certification, as well as the reduced control number. The OMB control State, local, or tribal governments or information collection requirements numbers for EPA’s regulations are listed communities; associated with becoming exempt from in 40 CFR Part 9 and 48 CFR Chapter (2) Create a serious inconsistency or the existing storm water permit 15. otherwise interfere with an action taken regulations, are being developed at this Comments are requested on the or planned by another agency; time but are most appropriately Agency’s need for this information, the (3) Materially alter the budgetary considered as part of the existing storm accuracy of the provided burden impact of entitlements, grants, user fees, water regulations, the incremental estimates, and any suggested methods or loan programs or the rights and change in information collection burden for minimizing respondent burden, obligations of recipients thereof; or associated with the no exposure including the use of automated (4) Raise novel legal or policy issues requirements has been estimated in a collection techniques. Comments are arising out of legal mandates, the separate section of the economic specifically requested on the potential President’s priorities, or the principles analysis accompanying today’s to shorten the recordkeeping period for set forth in the Executive Order. proposed storm water rule. construction activity less than 5 acres to Pursuant to the terms of Executive The proposed no exposure provision less than the proposed 3 years. Send Order 12866, it has been determined would expand the applicability of the comments on the ICR to ‘‘ATTN: Storm that this rule is a ‘‘significant regulatory ‘‘no exposure’’ exemption to more Water Proposed Rule ICR Comment action’’ because it could have an annual industrial entities than currently Clerk—W–97–15, Water Docket, Mail effect on the economy of $100 million contemplated. Under the existing rule, Code 4101, EPA; 401 M Street, SW, or more. As such, this action was permit application requirements are Washington, D.C. 20460’’ and to the submitted to OMB for review. Changes reserved for storm water discharges Office of Information and Regulatory made in response to OMB suggestions or associated with light industrial Affairs, Office of Management and recommendations will be documented materials and activities identified under Budget, 725 17th Street, NW, in the public record. § 122.26(b)(14)(xi) if those materials and Washington, D.C. 20503, marked EPA developed detailed cost activities have no exposure to storm ‘‘Attention: Desk Officer for EPA.’’ estimates for the incremental water. Today’s proposed rule would Include the ICR number in any requirements imposed under today’s expand the applicability of the ‘‘no correspondence. Because OMB is proposed regulation and the regulatory exposure’’ exemption to include all required to make a decision concerning options considered and applied these industrial activity regulated under the ICR between 30 and 60 days after estimates to the potentially regulated § 122.26(b)(14) (except category (x), January 9, 1998, a comment to OMB is universe of storm water sources construction). The proposed no best assured of having its full effect if designated under today’s proposal. exposure provision would be applied OMB receives it by February 9, 1998. These estimates, including descriptions through the use of a written certification The final rule will respond to any OMB of the methodology and assumptions process, thus representing a slight or public comments on the information used, are described in detail in the burden increase for ‘‘light’’ industries collection requirements contained in Economic Analysis of the Storm Water with no exposure. There would be both this proposal. Phase II Proposed Rule, which is new costs and cost savings. The new included in the record of this costs would relate to the certification IV. Executive Order 12866 rulemaking. Exhibit 4 summarizes the requirement and State and Federal Under Executive Order 12866 of low-high cost range associated with the implementation costs. The new cost September 30, 1993: Regulatory basic elements of the proposed rule.

EXHIBIT 4.ÐCOMPARISON OF ANNUAL COMPLIANCE COST ESTIMATES [Millions of 1997 Dollars]

No regula- tion of August 7, 1995, September 30, February 13, Proposed phase II final rule Plan B 1996 draft pro- 1997 draft pro- phase II rule sources posed rule posed rule

Construction ...... $0 $278±$976 $261±$914 $177±$683 $115±$476 $115±$476 Municipal ...... 0 701±3,085 388±2,236 23±393 23±393 23±393 Industrial ...... 0 1,218±74,824 0 46±2,632 46±2,632 0

Total Cost ...... 0 2,197±78,885 649±3,150 246±3,708 184±3,501 138±869 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1599

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

EXHIBIT 5.ÐPERCENTAGE OF MUNICIPALITIES AFFECTED AND RANGE OF PER CAPITA COSTS FOR SIX MINIMUM MEASURES

Percent of municipali- ties ex- Low end of High end of Measure pected to range of per range of per incur costs capita costs capita costs (percent)

First Permit Cycle: Public Education ...... 39 $0.02 $0.34 Public Involvement ...... 100 0.19 0.20 Illicit Discharge D&E ...... 90 0.04 2.61 Const Site SW Runoff Control ...... 83 0.04 1.59 Post Construction SW Mgt ...... 4 1.09 1.09 PP/GH of Municipal Ops ...... 71 0.01 2.00 2nd and 3rd Permit Cycles: Public Education ...... 39 0.01 0.34 Public Involvement ...... 100 0.12 0.12 Illicit Discharge D&E ...... 73 0.04 2.17 Const Site SW Runoff Control ...... 80 0.01 0.83 Post Construction SW Mgt ...... 4 1.09 1.09 PP/GH of Municipal Ops ...... 67 0.01 1.08

Concerns have been raised that using for Phase II municipalities. EPA as a result of this rule. As a sensitivity data from Phase I permit applications to especially requests any data that might analysis, EPA has estimated the calculate Phase II costs may lead to provide a better indication of actual municipal costs under the assumption either an understatement or compliance costs for these types of that 100 percent of covered Phase II overstatement of these costs. Since measures for smaller municipalities. municipalities would incur costs for Phase II communities are smaller and EPA also requests comment on its each measure. Under this assumption less densely populated, they will projection that compliance costs will be the municipal costs for the first permit probably have fewer structures to lower in the 2nd and 3rd permit cycles. cycle would range from $110 million to maintain, systems to map, and This projection is based on the fact that $690 million with a mean of $238 connections to inspect for illicit some program elements, such as million; second and third permit cycles development of municipal ordinances discharges than Phase I municipalities, would range from $98 million to $494 and identification of illicit connections, although whether this is also true on a million with a mean of $209 million. will only have to be done once, in the EPA requests comment on its per capita basis is not clear. They may first permit cycle. However, concern has projections of the percentage of Phase II also be able to coordinate with nearby been raised that there may be municipalities expected to incur costs Phase I programs for some measures, counteracting tendencies for subsequent for each measure, and any data that such as public education. However, to permit cycle costs to be higher, such as might help refine these estimates for the the extent that there are significant fixed population growth and more areas being final rule. costs and economies of scale associated classified as urbanized areas. To estimate costs to owner/operators with implementation of the measures, Concern has also been expressed that of small construction sites, EPA first the per capita costs for Phase II it may not be appropriate to apply the gathered national data on building municipalities may be higher than those percentages of Phase I municipalities permits issued over 15 years. Over the for Phase I municipalities. Also, it is not that apparently incurred costs for period from 1980 to 1994, there was a clear whether the costs listed on permit implementation of each measure to the 1.3 percent average annual increase in applications represent the entire estimation of Phase II costs. Because the number of building permits issued. compliance costs for the Phase I Phase II municipalities are smaller, they This growth rate was used to project municipalities sampled. EPA requests may be less likely than Phase I total building starts through the year comment on its methodology of using municipalities to already have adequate 2015. To estimate what percentage of estimated costs from Phase I permit storm water programs in place and thus these starts would be between 1 and 5 applications to project per capita costs be more likely to incur additional costs acres, EPA used more detailed data from 1600 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

Prince George’s County, Maryland to incremental costs to account for analysis. In addition, local and regional determine for each category of building programs and requirements already in experiences also verified some of the permit (residential, commercial, etc.) place. impacts and benefits that EPA had what percentage was between 1 and 5 The proposed rule would allow the estimated at a national level. acres and applied these percentages to NPDES permitting authority to waive The basic methodology for the top- the national totals. Of the projected applicability of requirements to storm down approach was as follows. For each 645,709 building sites for the year 2000, water discharges from small of the various categories of financial, EPA estimated that 22 percent, or construction sites based on three recreational, and health benefits, EPA 140,485 would be between 1 and 5 different criteria. In the economic first estimated the total value if all acres, based on the Prince George’s analysis the Agency has projected that surface waters of the United States were County (PGC) data. EPA recognizes that 15 percent of the construction sites that cleaned up to a level that supported PGC may not be representative of the would be covered by today’s proposal their designated uses. Next, using entire country and requests any data would be eligible to receive such information on the degree and causes of that commenters may have that might be waivers. Based on an informal survey of water quality impairment from EPA’s used to develop a better estimate of the individuals familiar with the 1994 and 1996 Section 305(b) National number of construction sites between 1 construction industry, EPA believes the Water Quality Inventory Report to and 5 acres. percentage of sites eligible for waivers Congress, EPA estimated the portion of EPA next estimated the number of would probably fall between 5 and 25 total impairment (and thus total percent. If the number of sites eligible benefits) attributable to storm water sites located in States that already for waivers were 25 percent, rather than runoff. Although it varied by benefit require permits for sites between 1 and the 15 percent used in the EA, projected category, generally between 5 and 10 5 acres, and removed these from its cost compliance costs for small construction percent of total water quality calculations because sites in these States sites would be correspondingly lower. impairment was found to be attributable would not be expected to incur Similarly, if only 5 percent of sites to either urban or construction storm additional costs, beyond those already turned out to be eligible for waivers, water runoff. Finally, EPA determined involved in State permitting. This compliance costs would be the share of storm water benefits that removed 19 percent of the estimated correspondingly higher. The should be attributed to the Phase II rule sites between 1 and 5 acres, leaving a construction cost analysis does not specifically. projected 111,357 sites in the year 2000 include any costs for the preparation One consequence of the approach that would be expected to incur and submission of waiver applications, used to estimate monetized benefits is incremental costs as a result of this rule. but the agency believes these costs will that, unlike the cost analysis, the Finally, EPA estimated the percentage of be negligible. EPA solicits comments benefits analysis only provides these sites that are already subject to and data on its assumptions regarding monetized estimates of the benefits local sediment and erosion control construction waivers. associated with today’s proposed (SEC) requirements. Based on a survey Because today’s proposed rule regulatory alternative. To account for of 113 localities, EPA estimated that 37 provides a significant degree of the fact that any storm water control percent of sites between 1 and 5 acres, flexibility to the NPDES permitting may not be 100-percent effective, EPA or 41,202 in the year 2000, would authority and designated sources estimated the effectiveness of the storm already be subject to local controls and proposed for regulation, the actual costs water BMPs proposed in today’s rule would thus not incur incremental costs of implementing today’s proposed storm and applied these estimates to the total to implement SEC measures. EPA water rule depend greatly on how the monetized benefits of the proposal. Due estimates that these sites would incur NPDES permitting authority and to the uncertainty regarding costs for the preparation of Notices of regulated sources implement the effectiveness of different BMPs, as well Intent, Notices of Termination, and program. To some extent, this flexibility as that regarding the appropriate share Storm Water Pollution Prevention Plans is reflected in the broad ranges of costs. of storm water benefits to allocate to only, while the remaining 70,155 sites EPA believes that because of the each of EPA’s wet weather programs, would incur costs for implementation of significant flexibility provided by the EPA developed three scenarios to SEC controls as well. EPA notes that proposed rule, the low to middle ranges estimate proposal benefits. In Scenario 1 sites in coastal areas subject to the of costs are most representative of the (high benefits scenario), it was assumed Coastal Zone Act Reauthorization actual costs likely to be incurred. that Phase II BMPs would be 90 percent Amendments of 1990 (CZARA) would Estimates of monetized benefits effective in controlling pollution from be required to implement sediment and associated with today’s proposed storm water runoff, that 5⁄7 of health erosion controls even without the regulation were derived using an benefits should be allocated to storm proposed rule. SEC costs for sites in aggregate, ‘‘top-down’’ approach. Under water programs (Phases I and II) and 2⁄7 those areas should thus not be this approach, the underlying data and should be allocated to EPA’s sanitary considered incremental costs of this assumptions were geared to a national sewer overflow (SSO) program, and that rule. However, because EPA is not sure scale (e.g., national value of the most municipal storm water benefits how much overlap exists between commercial fishery and nationwide should be allocated 50 percent to Phase coastal zone areas, States that already beach visit data). EPA chose this I and 50 percent to Phase II. The have permitting programs for small approach because research indicated exceptions were benefits for avoided construction sites, and localities that that, given the variability of local costs of building or replacing water already have SEC requirements, EPA situations and the scarcity of data on storage capacity, 75 percent of which did not remove additional sites from the both local conditions and on were to be allocated to Phase II, and rule costs specifically because they were extrapolation methods, a bottom-up benefits for avoided costs of freshwater located in areas subject to CZARA (note, approach was not deemed to be feasible navigational dredging, 25 percent of for example, that most State permitting at this time. Nevertheless, information which were allocated to Phase II. In programs are in such areas). EPA from more geographically confined Scenario 2 (medium benefits scenario), requests comment on its procedure for studies provided important data that it was assumed that Phase II BMPs adjusting the number of sites subject to support such a monetized benefit would be 80 percent effective, that all Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1601 health benefits should be allocated to benefits, including those for avoided programs and 4 percent to other wet storm water programs, and again, that costs of building or replacing water weather programs. In all three scenarios, most municipal storm water benefits storage capacity and freshwater 40 percent of storm water construction should be allocated evenly between navigational dredging, should be benefits were allocated to Phase II. The Phases I and II, with the same two allocated evenly between Phases I and Economic Analysis document exceptions. In Scenario 3 (low benefits II. In Scenario 1, all water storage accompanying today’s action provides a scenario), it was assumed that Phase II replacement and navigational dredging detailed description of the basis BMPs would be only 60 percent costs were allocated to storm water rationale for each of these scenarios. effective, that all health benefits should programs (Phases I and II), while in be allocated to storm water programs, Scenarios 2 and 3, 96 percent of these Exhibit 6 summarizes annual benefits and that all municipal storm water benefits were allocated to storm water attributed to the proposed Phase II rule.

EXHIBIT 6.ÐSUMMARY OF TOTAL ANNUAL MONETIZED BENEFITS FROM IMPLEMENTATION OF THE PROPOSED STORM WATER RULE [Millions of 1997 Dollars]

Scenario 1 Scenario 2 Scenario 3 Benefits category annual annual annual value value value

Municipal Benefits ...... $114±$379 $100±$333 $66±$222 Construction Benefits ...... 61±195 53±169 40±127

Total ...... 175±574 153±502 106±349

EPA was able to develop a partial annually is only $180 million (to in open coastal waters rather than monetary estimate of expected benefits remove 83 million cubic yards), estuaries. EPA has assumed that full for today’s storm water proposed rule compared to the $2 to $6 billion that restoration of these resources would for municipal and construction benefits. EPA estimates would be required to result in a 20 percent increase in their Summing the monetized benefits for replace the estimated 1.3 billion cubic value, based roughly on the degree of each of the scenarios across these yards of water storage capacity lost to estuarine impairment. A concern has categories results in total benefits pollution sources annually. On the other been raised that the degree of ranging from approximately $106 hand, the temporary nature and impairment in open coastal waters may million to $574 million (1997 $) intermittent frequency of reservoir be significantly different than that of annually for the proposed rule. dredging and the frequent need to estuaries, and the value of full EPA is requesting comment on several deploy and remove heavy equipment restoration of open coastal resources aspects of its benefits estimation and dispose of spoil often in confined correspondingly changed. Concern has methodology. The largest single areas, may elevate costs on a per cubic also been raised that the current category of estimated benefits is avoided yard basis for reservoirs versus estimates do not account for the costs of building or replacing water navigational dredging. EPA has no data substitutability of resources, but rather storage capacity (reservoirs) lost to on the actual amount spent on water assume that the total amount of current sediment deposition. EPA estimates that storage capacity replacement. EPA thus marine fishing and swimming is limited an average of 820,000 acre feet of storage requests comment on its methodology by the availability of unimpaired capacity is lost to pollution sources each for estimating these avoided costs, on its estuarine and coastal areas. EPA year. EPA further estimates that 1⁄3 of allocation of these avoided costs requests comment on its methodology this capacity will be replaced by between Phases I and II, and any data for estimating these benefits, and any building new reservoirs, at a cost of that would allow it to refine these data, especially on the degree of $420 to $1500 per acre foot, and 2⁄3 of estimates for the final rule. EPA also impairment of open coastal waters or this capacity will be restored by requests comment on whether it would the fraction of marine fishing and dredging, at a cost of roughly $3,500 to be appropriate to discount these swimming that occurs in such waters, $11,000 per acre foot. This yields benefits, and by how much, given that that would allow it to refine these annual water storage replacement costs much of the actual replacement of lost estimates for the final rule. of $2 to $6 billion annually. EPA storage capacity may not occur for As a sensitivity analysis, EPA also estimates that roughly 8 percent of these several decades. EPA further notes that performed an alternative benefits costs (or $170 to $510 million) are many other categories of benefits may estimate using a different ‘‘bottoms-up’’ attributable to storm water runoff. EPA also entail significant lags and requests approach based on its Clean Water Act allocated 75 percent of the benefits from comment on the appropriateness of Effects Model. The modeling approach avoiding these costs in Scenarios 1 and discounting benefits to account for these examined impacts of all wet weather 2 to Phase II, because it believes that lags generally. events together: SSOs, CSOs (Combined most reservoirs are likely to be outside EPA is also requesting comment on its Sewer Overflows) and storm water of densely populated Phase I areas. In methodology for estimating marine Phase I and II. This would provide an Scenario 3, these benefits are allocated recreational and commercial benefits for upper bound estimates for storm water evenly between Phases I and II. Concern fishing and swimming. Specifically, the control. (For this analysis, it was has been expressed that these benefits current estimates are based on the possible to break out CSOs as separate estimates may be too high, especially degree of estuarine impairment data exists for these events.) given that the total amount actually attributable to storm water, although Changes in water quality relate to spent on navigational dredging EPA recognizes that a significant share changes in how humans use the attributable to pollution sources of marine fishing and swimming occurs resource. This analysis estimated 1602 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules changes to water quality based on additional numerous mechanisms by banks and incision of the stream floor assumptions about the level of control which society is likely to benefit from result in sediment movement and EPA would expect from the CWA’s wet reduced storm water pollution, such as eventually buildup in downstream weather programs. Next, the Agency improved aesthetic quality of waters, environments. Sediment covers the estimated the changes in human use and benefits to wildlife and to threatened stream bed, smothers fish eggs and enjoyment of the resource. The Agency and endangered species, option spawning grounds, interferes with applied ‘‘willingness-to-pay (WTP)’’ existence values, cultural values, and hatching, and can clog the gills and values from Mitchell/Carson (1993) biodiversity benefits. The estimates of filter systems of fish and aquatic contingent valuation survey results, freshwater recreational benefits invertebrates. This latter effect can which estimates the amount of money included in the monetized benefits result in retarded growth, systemic people are willing to pay for water analysis are based on the Mitchell/ disfunction, or asphyxiation. quality improvement. (Mitchell/Carson Carson ‘‘willingness-to-pay’’ study. Subsequent loss of aquatic life has a estimates include values for recreation Mitchell/Carson estimates the value ripple effect up the food chain. use as well as nonuse values.) people are willing to pay to restore all High nutrient levels often lead to The model examined three different of the nation’s waters to fishable/ eutrophication of the aquatic system. wet-weather programs under three swimmable quality, and thus This entails the blue/green surface algae loadings reduction scenarios based on presumably already includes associated bloom, water discoloration, and differences in such factors as average ‘‘non-use’’ values. However, EPA depressed levels of dissolved oxygen. annual rainfall in different hydrologic believes there are non-use values that Heavy metals can have toxic effects on regions and changes in removals. For are not captured in the Mitchell/Carson aquatic life. Heavy metals in the water each of these scenarios EPA further estimates and thus not included in the column and sediments have been estimated low, medium and high values monetized benefits estimates. connected with respiratory problems in to account for wide ranges in variability. These environmental and health fish and often destroy or infect the The following discussion of results is benefits are also important. Another insect populations which serve as the based on medium values in these three benefit that EPA did not specifically primary food source for many fish scenarios. The results of this analysis show a monetize is the benefits of flood control species. High bacteria levels from range of monetized benefit of $1 to $7 to the extent that Phase II storm water animal excrement and carcasses, septic billion for all urban wet weather controls reduce downstream flooding. In runoff or illegal dumping by motor programs. The results of the modeling addition, the Agency relied on a homes and others affect critical did not split out storm water impacts geographically-limited data set (Santa estuarine habitats which are the nation’s from SSO impacts. Applying the Monica Bay, California) to measure the most productive finfish, oyster, clam percentages used in the top down benefits of illness avoided due to storm and shrimp fisheries. EPA requests water controls. comment on the extent to which approach (5⁄7 storm water, 2⁄7 SSO), EPA derived an estimate for storm water A significant category of benefits that additional consideration of these Phase II. Using the medium results, the Agency could not specifically ecological benefits is needed and averaged between the low and the high monetize is ecological benefits. appropriate methodologies for estimates, benefit estimates for the Urbanization can adversely affect water quantifying and monetizing them. proposed rule fall within a range of quality by increasing the amount of Exhibit 7 compares the estimated $526 million to $3.56 billion. The wide sediment, nutrients, metals and other national annual monetized total benefits range of these estimates is due to the pollutants associated with land associated with the proposed storm very flexible nature of the proposal, disturbance and development. Not only water regulations with the monetized which would provide communities with is there a dramatic increase in the costs associated with the proposed a wide range of options to consider for volume of water runoff but there may regulation. Because EPA is uncertain of control of storm water. also be a substantial decrease in that the exact monetized benefit, the benefits There are additional benefits to storm water’s quality due to stream scour, for each scenario have been compared to water control that cannot be quantified runoff and dispersion of toxic costs. The net total benefits (social or monetized. The estimate of pollutants, and oversiltation. The higher benefits less social costs) for the three monetized benefits presented here may flow volumes in the tributary streams benefits scenarios range from positive thus understate the true value of storm and channels create a ‘‘domino’’ effect $34 million in Scenario 1 to negative water controls because it may omit of ecological impacts. Erosion of stream $531 million in Scenario 3.

EXHIBIT 7.ÐCOMPARISON OF TOTAL ANNUAL MONETIZED BENEFITS TO TOTAL ANNUAL COSTS FOR THE PROPOSED PHASE II STORM WATER RULE [Millions of 1997 Dollars]

Benefit categories Scenario 1 value Scenario 2 value Scenario 3 value

Financial Benefits ...... $93±$267 $80±$228 $51±$144 Recreational Benefits ...... $81±$304 $72±$271 $54±$203 Health Benefits ...... $1±$3 $1±$3 $1±$2 $175±$574 $153±$502 $106±$349 Cost categories Value (Low-High) Compliance Costs ...... $138±$869 ...... Administration Costs ...... $3±$11 ......

Total Monetized Costs ...... $141±$880 ......

Net Monetized Benefits ...... $34±$(306) $12±$(378) $35±$(531) Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1603

The proposed storm water rule informing, educating, and advising impacts. EPA also assessed the social includes a provision that would allow small governments on compliance with costs of the proposed regulation and owners or operators of facilities with the regulatory requirements. estimates the total social costs of the existing discharges associated with EPA has determined that this proposed rule to range from industrial activity to certify that if proposed rule contains a Federal approximately $141 million to $878 significant materials or industrial mandate that may result in expenditures million annually (1997 $). The proposed activities are not exposed to storm water of $100 million or more for State, Tribal, rule would not have the potential to the owners or operators could apply for and local governments, in the aggregate, increase costs for industrial an exemption from the requirements of or the private sector in any 1 year. manufacturers and producers because the NPDES permitting program. This Accordingly, under UMRA section 202, the proposed rule does address storm provision is included in today’s EPA has prepared a written statement, water discharges from other types of proposed storm water rule but would which is summarized below. industrial facilities. only apply to sources regulated under A. UMRA Section 202 Written B. Description of Intergovernmental existing rules. Therefore, EPA has Statement Consultation decided not to factor the costs savings associated with this exemption into the EPA proposes today’s storm water Consistent with the intergovernmental costs analysis for today’s proposed rule. regulation pursuant to the specific consultation provisions of section 204 of Rather, the cost savings associated with mandate of Clean Water Act § 402(p)(6), the UMRA and Executive Order 12875, this exemption is addressed separately as well as sections 301, 308, 402, and Enhancing the Intergovernmental in the Economic Analysis. 501. (33 U.S.C. §§ 1342(p)(6), 1311, Partnership, EPA consulted with elected 1318, 1342, 1361.) Section 402(p)(6) of representatives of various levels of V. Unfunded Mandates Reform Act/ the CWA requires that EPA designate government in a variety of ways. First, Executive Order 12875 sources to be regulated to protect water EPA provided States, local, and tribal Title II of the Unfunded Mandates quality and establish a comprehensive governments and the private sector with Reform Act of 1995 (UMRA), Pub. L. program to regulate those sources. In a the opportunity to comment on 104–4, establishes requirements for separate document in the administrative alternative approaches to the proposed Federal agencies to assess the effects of record, EPA describes the qualitative regulations through publishing a notice their regulatory actions on State, Tribal, and monetized benefits associated with requesting information and public and local governments and the private the proposed storm water rule and then comment on the approach for the CWA sector. Under UMRA section 202, EPA compares the monetized benefits with section 402(p)(6) regulations in the generally must prepare a written the estimated costs for the proposed Federal Register on September 9, 1992 statement, including a cost-benefit rule. The Agency also developed a (57 FR 41344). This notice presented a analysis, for proposed and final rules partial monetary estimate of expected full range of regulatory alternatives with ‘‘Federal mandates’’ that may benefits for the proposed rule for under each issue in an attempt to result in expenditures to State, Tribal, financial benefits, recreational benefits, illustrate, and obtain input on, the and local governments, in the aggregate, and health benefits. Summing the regulation of unregulated sources to or to the private sector, of $100 million monetized benefits, for each of the protect water quality. Approximately 43 or more in any one year. Before scenarios, across these categories results percent of the more than 130 comments promulgating an EPA rule for which a in total benefits ranging from received came from municipalities and written statement is needed, UMRA approximately $106 million to $574 24 percent from State or Federal section 205 generally requires EPA to million (1997 $) annually for the agencies. These comments provided the identify and consider a reasonable proposed rule. Because EPA is uncertain genesis for many of the provisions in the number of regulatory alternatives and of the exact monetized benefit, three proposed storm water rule, including adopt the least costly, most cost- benefit scenarios were created and reliance on the NPDES program effective, or least burdensome compared to costs for the proposed framework (including general permits), alternative that achieves the objectives regulation. providing State and local governments of the rule. The provisions of section In that document, EPA reviewed the flexibility in selecting additional 205 do not apply when they are potential for this proposed rule to have sources requiring regulation on a inconsistent with applicable law. a significant effect on the economy or localized basis, focusing on high Moreover, section 205 allows EPA to upon unemployment and determined priority polluters and providing certain adopt an alternative other than the least that the unemployment impacts will be exemptions for facilities that do not costly, most cost-effective, or least minimal, if any at all. pollute, focusing on pollution burdensome alternative if the First, the proposed rule does not prevention and best management Administrator publishes with the final address industries involved in practices, and incorporating watershed- rule an explanation why that alternative production, but rather small municipal based concerns in targeting. was not adopted. Before EPA establishes separate storm sewer systems and Second, in early 1993, EPA, in any regulatory requirements that may construction sites under 5 acres. conjunction with the Rensselaerville significantly or uniquely affect small Second, flexibility within the proposed Institute held public and expert governments, including Tribal rule would allow municipalities to meetings to assist in developing and governments, it must have developed tailor proposed individual municipal analyzing options for identifying under UMRA section 203 a small storm water program requirements to unregulated storm water sources and government agency plan. The plan must their needs and financial position. possible controls. These meetings again provide for notifying potentially Finally, discussions with allowed participants an opportunity to affected small governments, enabling representatives within the construction provide input into the CWA section officials of affected small governments industry indicate that construction costs 402(p)(6) program development process. to have meaningful and timely input in would likely be passed on to consumers. The proposed rule reflects several of the the development of EPA regulatory EPA believes that these same reasons key concerns identified in these groups, proposals with significant Federal would result in the proposed rule including provisions that provide intergovernmental mandates, and having minimal or no unemployment flexibility to the States and to other 1604 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules permitting authorities to select sources administrative costs for State and impacts of regulatory requirements in to be controlled in a manner consistent Federal NPDES permitting authorities. the rule that might significantly or with criteria developed by EPA. Because the proposed rule provides a uniquely affect small governments. Finally, EPA established the Urban significant degree of flexibility to the Though today’s proposal would expand Wet Weather Flows Advisory permitting authority and sources the NPDES program (with Committee (FACA), including a Storm proposed for regulation, the actual costs modifications) to certain municipal Water Phase II Subcommittee. of implementing the proposed storm separate storm sewer systems serving Consistent with the Federal Advisory water rule are highly dependent on how populations below 100,000 people and Committee Act, the membership of the the program is implemented by the though many systems are owned by Storm Water Phase II Subcommittee was permitting authority and the sources small governments, EPA does not think balanced among EPA’s various outside proposed for regulations. To some the proposed rule might significantly or stakeholder interests, including extent, this flexibility is reflected in the uniquely affect small governments. As representatives from State governments, broad ranges of costs. EPA believes that municipal governments (both elected because of the significant flexibility explained in the Regulatory Flexibility officials and appointed officials) and provided by the proposed rule, the low Act section of the preamble, EPA today tribal governments, as well as industrial to middle ranges of costs are most certifies that the proposed rule will not and commercial sectors, agriculture, representative of the actual costs likely have a significant impact on small environmental and public interest to be incurred. In the administrative governmental jurisdictions. In addition, groups. The Storm Water Phase II record supporting today’s proposal, EPA the proposed requirements would not Subcommittee met approximately every estimated ranges of costs associated have a unique impact on small other month between September 1995 with six different options for today’s governments because larger and June 1997. In addition to meetings, proposal. For each option, EPA estimate governments would also be affected. conference calls, and correspondence, a cost range. From the highest of the Notwithstanding this finding, the Subcommittee members were provided high estimates to the lowest of the low, Agency sought to provide elected three opportunities to comment in the cost range varied between no cost officials of small governments (and their writing on preliminary draft approaches and $79 billion dollars. The least costly, representatives) with an opportunity for and actual drafts of the proposed rule most cost-effective or least burdensome early and meaningful participation and preamble. Ultimately, the 32 option is the ‘‘no regulation’’ option. through FACA process. In addition, EPA Subcommittee members recommended This option, however, would not is committed to providing guidance for many of the portions making up the achieve the objectives of CWA section the operators of the municipal separate regulatory framework in the proposed 402(p)(6) because remaining storm sewer systems (which would rule. unregulated point sources of storm likely include small governments) water need to be regulated to protect C. Selection of the Least Costly, Most developed in conjunction with the water quality. The remaining option that Cost-Effective or Least Burdensome Storm Water Phase II FACA is both the least costly, most cost- Alternative That Achieves the Subcommittee. effective or least burdensome and Objectives of the Statute accomplishes the objectives of the rule As mentioned previously, 43 percent The proposed regulation is based on is the proposed rule in its current form. of the comments received on the a ‘‘flexible’’ NPDES program alternative. Today’s proposal represents the lowest September 9, 1992, notice were from This alternative evolved over time and cost range option (between $106 million municipal governments. In addition, the incorporates aspects of each of the other to $574 million dollars). following groups participated as alternatives in order to respond to Although Congress did not establish a members of the Storm Water Phase II concerns presented by the various fund to fully finance implementation of FACA Subcommittee: the Conference of interests represented in the Storm Water the proposed extension of the existing Mayors, the National League of Cities, Phase II Subcommittee. A primary NPDES storm water program under the National Association of Towns and characteristic of the proposed rule is the section 402(p)(6), numerous Federal Townships, the National Association of flexibility it offers both the permitting financing programs (administered by Counties, the CSO Partnership, the authority and the sources proposed for EPA and other Federal agencies) could Water Environment Federation, and the regulation (small MS4s and small provide some financial assistance. Association of Metropolitan Sewerage construction sites), such as general These programs include CWA section Agencies. Through such participation permits, best management practices 106 grant program CWA section and exchange, EPA notified potentially suited to specific locations, and 104(b)(3) grant program, State surface affected small governments of allowing MS4s to develop their own and ground water management requirements under consideration, program goals. EPA developed detailed programs under the Safe Drinking Water cost estimates for the incremental allowed officials of affected small Act, the environmental quality governments to have meaningful and requirements imposed under the incentives program, the conservation timely input into the development of proposed regulation, and for each of the reserve program, the wetlands reserve regulatory proposals, and will inform, alternatives, and applied these estimates program, and the estuary management educate, and advise small governments to the potentially regulated universe of and Federal monitoring programs. Also, remaining unregulated point sources of the Natural Resources Conservation on compliance with the regulatory storm water. The Agency compared the Service (NRCS) has some grants requirements. The Agency is also estimated annual range of costs imposed available to assist in projects related to undertaking efforts to develop a ‘‘tool under the proposed regulation and other erosion and sediment controls. box’’ of aids (e.g., fact sheets, guidance, major options considered. The range of information clearinghouse, training, values for each option included the D. Small Government Agency Plan education, research, and pilot programs) costs for compliance including In developing the proposed rule, EPA to be made available to regulated paperwork requirements for the owners consulted with small governments entities and permitting authorities to and operators of small construction pursuant to its interim plan established facilitate implementation of today’s sites, industrial facilities, and MS4s and under UMRA section 203 to address proposed regulation. Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1605

VI. Executive Order 12898 VII. Regulatory Flexibility Act sites. Finally, the proposed rule would Under the Regulatory Flexibility Act not apply to any small not-for-profit Executive Order 12898 established a organizations. Federal policy for incorporating (RFA), 5 U.S.C. 601 et seq., as amended environmental justice into Federal by the Small Business Regulatory In the next step of the Agency’s agency missions by directing agencies to Enforcement Fairness Act (SBREFA), evaluation, EPA analyzed the potential identify and address in their programs, whenever EPA is required to publish economic impact of the proposed rule policies, and activities, as appropriate, notice of general rulemaking, EPA must on the small entities it had identified as the disproportionately high and adverse prepare an initial regulatory flexibility likely to be subject to the proposed rule. human health or environmental effects analysis (IRFA) describing the economic In the case of those small municipalities on minority and low-income impact of the proposal on small entities, that would be affected if the proposal is populations. EPA ensured proper unless the Administrator certifies that a adopted, EPA evaluated the potential consideration of environmental justice proposed rule will not have a impact using a ‘‘revenue test.’’ Under concerns during the section 402(p)(6) ‘‘significant economic impact on a this test, EPA looked at the total annual rulemaking by selecting a balanced substantial number of small entities.’’ cost of complying with the proposed FACA membership and specifically After consideration of the economic requirements in relation to total annual inviting a representative of the impacts of today’s proposed rule on municipal revenues. EPA calculated Environmental Justice Information small entities, the Administrator total annual compliance cost based on Center to participate on the Storm Water certifies that the proposed rule will not mean costs ($2.67 per capita and $555 Phase II FACA Subcommittee. EPA have a significant economic impact on per municipality) and the population examined the potential impact of a substantial number of small entities. reported in the 1990 Census. EPA today’s proposed storm water rule on Notwithstanding today’s certification, estimated annual revenues based on minority and low-income populations EPA has prepared an IRFA. In addition, data from the 1992 Census of and worked to develop a proposed rule prior to determining that today’s Governments, using state-specific that would address environmental proposal should be certified, EPA estimates of annual revenue per capita justice concerns. Discussions with the convened a Small Business Advocacy for municipalities in three population Storm Water Phase II FACA Review Panel under the RFA, as size categories (fewer than 10,000, amended by the Small Business Subcommittee contributed to these 10,000–25,000, and 25,000–50,000). efforts. Regulatory Fairness Act (SBREFA), to evaluate and minimize the potential Based on this evaluation, the Three aspects of today’s proposed impacts of the proposed rule on small Administrator certifies that today’s storm water regulation would support entities. proposed storm water rule will not have environmental justice objectives. First, a significant economic impact on a the proposed rule would result in A. Economic Impact on Small Entities substantial number of small improvements in water quality in the EPA assessed the potential economic municipalities. Estimated compliance areas around small municipalities and impact of today’s proposed storm water costs represent more than 1 percent of certain industries that impact water regulation on small entities. As the first estimated revenues for only 62 quality. These improvements would step in its evaluation, EPA identified municipalities of the affected small benefit all persons living in or using those small entities potentially affected municipalities—approximately 1.7 these areas, including minority by the proposal. In identifying these percent of small municipalities—and populations and low-income small entities, EPA used the definitions less than 3 percent of estimated populations. Second, the proposed rule of small businesses, small governmental revenues for all but 4 municipalities— would provide a high degree of jurisdictions (e.g., municipalities), and approximately 0.1 percent of affected flexibility to the NPDES permitting small organizations (e.g., nonprofit small municipalities. In both absolute authority to address high priority organizations) established by the RFA. and relative terms, the impact is not contaminated storm water discharges Based on data from the 1990 U.S. significant. based on community input and public Census, EPA estimated that a total of participation. This ability to focus 3,614 small governmental jurisdictions EPA also assessed the potential program requirements on priority needs (specifically, municipalities) would be impact of the rule on Indian Tribes or areas should serve as an additional affected by the proposed rule. In using the same revenue test applied to tool to address environmental justice addition, 11 Indian Tribes, as small municipalities. However, revenue per concerns. Third, the proposed rule governmental jurisdictions who own/ capita for tribal governments was not specifies that public education and operate municipal separate storm sewer available. Therefore, EPA used the outreach programs required of small systems, would also be affected. Next, State-specific municipal per capita municipal separate storm sewer systems EPA estimated that 187,610 revenue estimates by size category and should be tailored to address the construction firms in Standard adjusted these estimates downward concerns of all communities, Industrial Classification (SIC) Code 15 based on the ratio of per capita income particularly minority and disadvantaged would be subject to the proposal, if on the reservation to per capita income communities, as well as children. The adopted. EPA recognizes, however, that for the State. EPA then multiplied the proposed rule also specifies that this number may over-estimate the adjusted estimates of per capita revenue compliance with required public number of small businesses subject to by the reservation population and involvement and participation the proposal. The data do not permit the conducted the screening analysis in the requirements should include efforts to Agency to distinguish between small same manner as for municipalities engage all economic and ethnic groups. construction firms whose activities (assuming annual compliance costs of In addition, partly in consideration of include land clearing and site $2.67 per capita and $555 per the executive order, EPA proposes to preparation—the proposal’s reservation). EPA assumed that all exempt Tribes in urbanized areas with requirements would apply to such Tribes with populations between 1,000 populations of less than 1,000 from the operations—and those small and 100,000 would have to comply with requirements of today’s proposed rule. construction firms that do not prepare the rule and Tribes in Oklahoma would 1606 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules not be regulated.5 Estimated compliance costs to buyers for single-family homes to identify a group of small entity costs represent more than 1 percent of constructed using the storm water representatives to advise the Panel. The total estimated revenues for only 2 control program proposed today. Agency distributed a briefing package Indian Tribes. The remaining 9 Indian Obviously, if the small construction describing its preliminary analysis Tribes have compliance costs less than companies that would be subject to the under the RFA to this group (as well as 1 percent of estimated revenues. The proposal are able to pass the costs of to representatives from the Office of Administrator therefore certifies that compliance, either completely or Management and Budget and the Small this rule will not have a significant partially, on to their purchasers, then Business Administration) and also economic impact on a substantial the proposed rule’s impact is conducted two telephone conference number of small governmental significantly reduced. EPA conducted calls and an all-day meeting at EPA jurisdictions regardless of whether the this supplemental analysis using Headquarters in May of 1997. With this municipal and tribal impacts are available data and published economic preliminary work complete, in June analyzed separately or combined. literature. The analysis evaluated the 1997, EPA formally convened the For small businesses, in most potential effects of complying with this interagency Panel, comprising instances, EPA evaluates the potential proposed rule on the market for single- representatives from the Office of impact by using a ‘‘sales test.’’ Under a family houses for both the short and Management and Budget, the Small sales test, EPA compares the cost of long term including potential changes in Business Administration, EPA’s Office complying with proposed requirements the price and sales of single-family of Water and EPA’s Small Business to a small business’ total annual sales. homes. The Agency assessed the effect Advocacy Chair. The Panel received In developing the inputs to this test, on average monthly mortgage rates for a written comments from representatives EPA calculated the compliance costs range of potential interest rates. EPA has based on their involvement in the based on ‘‘unit costs’’ (i.e., compliance concluded that the costs to site earlier meetings, and invited additional costs per single-family home) rather developers and building contractors, comments to be submitted during the than costs per developer/contractor and the potential changes in housing term of the Panel itself. because of the uncertainties associated prices and monthly mortgage payments Consistent with RFA requirements, with estimating how many units an for single-family home buyers, are not the Panel evaluated the assembled ‘‘average’’ developer/contractor might expected to have a significant impact on materials and small-entity comments on develop or build in a typical year. the market for single-family houses issues related to: (1) a description and Therefore, EPA’s analysis was not including most potentially affected number of small entities to which the exactly a ‘‘sales test,’’ but was small firms that are actively proposed rule would apply; (2) a developed to derive the kind of results participating in this market. EPA’s description of the projected record that are comparable to results from a analysis projects the impact of the rule keeping, reporting and other compliance sales test. EPA approximated the sales on small site developers and building requirements applicable to small test by estimating compliance costs for contractors will be minimal because entities; (3) identification of other single-family homes under various these companies are expected to pass Federal rules that may duplicate, scenarios and comparing those costs regulatory costs on to home buyers overlap, or conflict with the proposed with the median sales price of a single- without a significant impact on sales. rule; and (4) regulatory alternatives that family home. The results of this Based on this assessment, the would minimize any significant approximation show that the cost of Administrator also certifies that the economic impact of the proposed rule complying with the proposed rule will proposal will not have a significant on small entities that would also not exceed 1 percent of the average sales economic impact on a substantial accomplish the stated objectives of the price of a single family home for an number of small businesses. CWA section 402(p)(6). array of the most likely economic and On August 7, 1997, the Panel regulatory scenarios. EPA reached this B. SBREFA Panel Process provided a Final Report (hereinafter, conclusion after controlling for sites of As previously explained earlier in the ‘‘Report’’) to the EPA Administrator. different size and the changes in preamble, EPA has conducted an The Report noted that, because of the compliance costs per site (i.e., single extensive outreach effort in developing extensive outreach conducted by the family home) that depend upon the today’s storm water proposal. EPA held Agency, and due to the Agency’s need to implement erosion and a number of public and expert meetings responsiveness in addressing sediment controls as a result of the to assist in preparing the proposal, and stakeholder concerns, small entity proposed rule. the Agency established a FACA representatives raised fewer concerns Because of the absence of data to Committee specifically to provide a than might otherwise have been specifically assess compliance costs per forum for addressing storm water issues. expected. A copy of the Report is developer/contractor as a percentage of EPA also convened a Small Business included in the docket for this proposed total annual sales (i.e., a very direct Advocacy Review Panel (‘‘Panel’’), as rule. Notwithstanding today’s estimate of the impact on potentially described in RFA section 609, in June certification that the proposed rule will affected small businesses), EPA 1997. Because EPA’s economic not have a significant economic impact performed additional market analysis to assessment was incomplete, the Agency on a substantial number of small examine the ability of potentially was not initially certain whether the entities, the Agency has incorporated affected firms to pass along regulatory proposed rule would have a significant many of the Panel’s recommendations economic impact on a substantial into today’s proposal. 5 The determination of applicability to Oklahoma number of small entities. A number of The Panel acknowledged and Tribes would be done on a case-by-case basis. In small entity representatives were commended EPA’s efforts prior to its authorization of the Oklahoma NPDES program, EPA retained jurisdiction to regulate discharges in actively involved with EPA through the Report to work with stakeholders, Indian Country (61 FR 65049, 12/10/96). However, FACA process, and were, therefore, including small entities, through the EPA believes it is unlikely that large populations of broadly knowledgeable about the Storm Water Phase II FACA Oklahoma Tribes would fall within areas that proposal under development. Prior to Subcommittee. As discussed in the would be determined to be a Federal Indian Reservation, and thus, subject to regulation (see convening the Panel, EPA consulted Background section of this preamble preamble). with the Small Business Administration (Section I.F. The FACA Committee Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1607

Effort) the subcommittee provided Other small business representatives include those that undergo a ‘‘temporary extensive input in the development of also questioned the Panel about the operational change’’ or that maintain today’s proposal. The Agency also proposed comprehensive program to vehicles outdoors without generating provided FACA members with copies of regulate construction activities that pollution. The Panel recommended that the Economic Analysis of the proposal, result in the land disturbance of 1 acre the Agency discuss these comments which includes the initial regulatory up to 5 acres. The Panel recommended with the Urban Wet Weather Flows flexibility analysis. EPA has sought to that EPA revise the preamble to the FACA Committee and revise the build upon the recommendations made proposed rule to invite comment on proposal as far as possible to allow all by members of the federal advisory alternatives to the proposed facilities preventing the actual discharge committee and has responded to requirements, including a discussion of of pollutants to make use of the ‘‘no numerous issues raised by them the concerns expressed by small entity exposure’’ EPA complied with that concerning the scope, method, and representatives and their specific recommendation as well. timing of the program outlined in suggestions for addressing them. The In addition to looking for ways to today’s proposal. The SBREFA Panel Agency has included the suggested redesign today’s proposal to limit its stated that, because of the extensive alternatives in its discussion of impacts on small entities, the Agency outreach conducted by the Agency and construction requirements in this has been working with the Storm Water the Agency’s responsiveness in preamble, in Section II. I. Other Phase II Subcommittee to develop addressing stakeholder concerns, Designated Storm Water Discharges. considerable support for commenters during the SBREFA process Both municipal and industrial implementation through the ‘‘tool box’’ raised fewer concerns than might representatives commented to the Panel approach discussed in the Section otherwise have been expected. Based on that, to avoid redundance, requirements II.A.5. of this preamble. The tool box the advice and recommendations of the for construction activities undertaken by would include fact sheets, guidances, an Storm Water Phase II FACA municipalities or industrial facilities information clearinghouse, training and Subcommittee, as well as the Panel should be incorporated within their outreach efforts, technical research, and Report, the proposal includes a number respective permits (provided that the support for demonstration projects. of provisions designed to minimize any permits detail sediment and erosion EPA’s outreach to small entities significant impact of the proposed rule controls). Similarly, municipal covered by this proposal and its on small entities as explained below representatives commented that accommodation of their legitimate and in Appendix 5 of today’s notice. requirements for industrial facilities needs have been aggressive and highly Municipal representatives commented operated by municipalities should be responsive. The Agency actively invites to the Panel that small municipal covered under municipal storm water comments on all aspects of the proposal separate storm sewers systems in permits. The Panel recommended that and its impacts on small entities so that urbanized areas serving less than 1,000 EPA explore and request comment on the final rule will reflect the most people might lack the capacity to certify these ideas in the preamble of the auspicious balance between necessary that their discharges do not have proposed rule. The Panel reported that environmental protection and significant adverse water quality these options may be appropriate for appropriate respect for the genuine impacts. EPA responded that the municipalities or industrial facilities limitations of small entities in technical basis for such certification with individually-issued NPDES understanding and complying with would generally be produced by the permits, but may be difficult to applicable requirements. permitting authority, in the form of a administer under NPDES general VIII. National Technology Transfer and TMDL or watershed plan. The Panel permits. The Agency has discussed and Advancement Act was concerned, however, that in the solicited comment on the first two of absence of a TMDL or watershed plan these options—condensing construction Under § 12(d) of the National developed by other parties (i.e., States requirements into a single municipal or Technology Transfer and Advancement or EPA), municipalities under 1,000 industrial storm water permit—as part Act, the Agency is required to use would have difficulty taking advantage of the preamble discussion of voluntary consensus standards in its of this waiver provision. The Panel construction requirements, in Section regulatory activities unless to do so recommended that EPA invite comment II.I. Other Designated Storm Water would be inconsistent with applicable on this issue, and EPA has done so Discharges. The Agency has discussed law or otherwise impractical. (Section II.G.3, NPDES Permitting and solicited comment on the third of ‘‘Voluntary consensus standards’’ are Authority’s Role—Provide Waivers). these options—condensing industrial ‘‘technical standards’’ (e.g., materials Municipal representatives also storm water requirements for specifications, test methods, sampling suggested to the Panel that small municipally owned or operated procedures, business practices, municipal separate storm sewer systems industrial facilities into a single management systems practices, etc.) that serving less than 1,000 people in municipal storm water permit—in the are developed or adopted by voluntary urbanized areas should be automatically preamble as part of the discussion of consensus standard bodies. Where exempt, just as EPA is proposing to industrial requirements, in Section available and potentially applicable exempt systems operated by Tribes of II.I.3. Other Sources. voluntary consensus standards are not less than 1,000. As further explained in The Panel also received comments on used by EPA, the Act requires the Section F., Tribal Role, EPA believes a preliminary draft of the revisions to Agency to provide Congress, through that the situations of very small Tribes the existing storm water rules providing the Office of Management and Budget, are not comparable to those of small relief to parties certifying ‘‘no exposure’’ an explanation of the reasons for not municipalities because Tribes cannot to rainfall events that could produce using such standards. generally rely on administrative support storm water runoff. Commenters Today’s proposed rule would not from a State permitting authority in the indicated that, as drafted, the provision even prescribe nationally applicable way municipalities can. Based on the would preclude such certification (and substantive control standards, either for positions taken by OMB and SBA in the thus deny appropriate exemption from construction site storm water or Report, however, EPA has agreed to permitting requirements) to certain municipal storm sewers. Such control request comment on this issue as well. deserving facilities. Such facilities standards would be developed on a 1608 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

State or local basis. Thus, as a threshold possible use of any potentially Dated: December 15, 1997. matter, the concept of ‘‘technical applicable voluntary consensus Carol M. Browner, standards’’ would not apply to the standards for the final rule. Administrator. regulatory activities proposed today. List of Subjects in 40 CFR Parts 122 and EPA requests comment on these Appendices to the Preamble findings. If a commenter believes that 123 today’s rule relies on technical Environmental protection, standards, the Agency also solicits Administrative procedure, Water information about the identification and pollution control.

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

State American Indian area Urbanized area

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

BILLING CODE 6560±55±P Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1609

BILLING CODE 6560±50±C 1610 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

Appendix 3 to Preamble—Urbanized Areas Denver Idaho Falls of the United States and Puerto Rico (based Fort Collins Pocatello on 1990 Census data) Grand Junction Greeley Illinois Alabama Longmont Alton Anniston Pueblo Aurora Auburn—Opelika Beloit, WI—IL Birmingham Connecticut Bloomington—Normal Columbus, GA—AL Bridgeport—Milford Champaign—Urbana Decatur Bristol Chicago, IL—Northwestern IN Dothan Danbury, CT—NY Crystal Lake Florence Hartford—Middletown Davenport—Rock Island—Moline, IA—IL Gadsden New Britain Decatur Huntsville New Haven—Meriden Dubuque Mobile New London—Norwich Elgin Montgomery Norwalk Joliet Tuscaloosa Springfield, MA—CT Kankakee Stamford, CT—NY Peoria Alaska Waterbury Rockford Anchorage Worcester, MA—CT Round Lake Beach—McHenry, IL—WI St. Louis, MO—IL Arizona Delaware Springfield Phoenix Dover Tucson Wilmington, DE—NJ—MD—PA Indiana Yuma, AZ—CA District of Columbia Anderson Bloomington Arkansas Washington, DC—MD—VA Chicago, IL—Northwestern IN Fayetteville-Springdale Florida Elkhart—Goshen Fort Smith, AR—OK Evansville, IN—KY Daytona Beach Little Rock—North Little Rock Fort Wayne Deltona Memphis, TN—AR—MS Indianapolis Fort Lauderdale—Hollywood—Pompano Pine Bluff Kokomo Beach Texarkana, AR—TX Lafayette—West Lafayette Fort Myers—Cape Coral Louisville, KY—IN California Fort Pierce Muncie Antioch—Pittsburgh Fort Walton Beach Gainesville South Bend—Mishawaka, IN—MI Bakersfield Terre Haute Chico Jacksonville Davis Kissimmee Iowa Lakeland Fairfield Cedar Rapids Melbourne—Palm Bay Fresno Davenport—Rock Island—Moline, IA—IL Miami—Hialeah Hemet—San Jacinto Des Moines Naples Hesperia—Apple Valley—Victorville Dubuque, IA—IL—WI Indio—Coachella Ocala Orlando Iowa City Lancaster—Palmdale Omaha, NE—IA Lodi Panama City Pensacola Sioux City, IA—NE—SD Lompoc Waterloo—Cedar Falls Los Angeles Punta Gorda Merced Sarasota—Bradenton Kansas Modesto Spring Hill Stuart Kansas City, MO—KS Napa Lawrence Oxnard—Ventura Tallahassee Tampa—St. Petersburg—Clearwater St. Joseph, MO—KS Palm Springs Titusville Topeka Redding Vero Beach Wichita Riverside—San Bernardino West Palm Beach—Boca Raton—Delray Sacramento Kentucky Beach Salinas Winter Haven Cincinnati, OH—KY San Diego Clarksville, TN—KY San Francisco—Oakland Georgia Evansville, IN—KY San Jose Albany Huntington—Ashland, WV—KY—OH San Luis Obispo Athens Lexington-Fayette Santa Barbara Atlanta Louisville, KY-IN Santa Cruz Augusta Owensboro Santa Maria Brunswick Louisiana Santa Rosa Chattanooga Seaside—Monterey Columbus Alexandria Simi Valley Macon Baton Rouge Stockton Rome Houma Vacaville Savannah Lafayette Visalia Warner Robins Lake Charles Watsonville Monroe Yuba City Hawaii New Orleans Yuma Honolulu Shreveport Kailua Slidell Colorado Boulder Idaho Maine Colorado Springs Boise City Bangor Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1611

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 Parkersburg, WV—OH New Hampshire 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 Youngstown—Warren Massachusetts Boston New Jersey 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 Longview New Mexico 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 Toledo, OH-MI North Carolina Trenton, NJ—PA 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, RI 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 North Dakota Joplin 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 Missoula Cleveland Chattanooga, TN—GA Columbus Clarksville, TN—KY Nebraska Dayton Jackson Lincoln Hamilton Johnson City 1612 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

Kingsport, TN—VA Huntington—Ashland, WV—KY—OH themselves are not industrial machinery or Knoxville Parkersburg, WV—OH material handling equipment and which are Memphis, TN—AR—MS Steubenville—Weirton, OH—WV—PA not leaking contaminants or are not Nashville Wheeling, WV—OH otherwise a source of industrial pollutants) may be exposed to precipitation or runoff. Texas Wisconsin Abilene Appleton—Neenah Completing the Form Amarillo Beloit, WI—IL You must type or print in the spaces Austin Duluth, MN—WI provided only. One form must be completed Beaumont Eau Claire for each facility or site for which you are Brownsville Green Bay seeking to certify no-exposure. Bryan—College Station Janesville Section I. Facility Operator Information Corpus Christi Kenosha Dallas—Fort Worth La Crosse, WI—MN Provide the legal name (no colloquial Denton Madison names) of the person, firm, public El Paso, TX—NM Milwaukee organization, or any other entity that operates Galveston Oshkosh the facility or site described in this Harlingen Racine certification. The name of the operator may Houston Round Lake Beach—McHenry, IL—WI or may not be the same as the name of the Killeen Sheboygan facility. The operator is the legal entity that Laredo Wausau controls the facility’s operation, rather than Lewisville the plant or site manager. Enter the complete Longview Wyoming address (P.O. Box numbers OK) and Lubbock Casper telephone number of the operator. McAllen—Edinburg—Mission Cheyenne Section II. Facility/Site Location Information Midland Puerto Rico Enter the facility’s or site’s official or legal Odessa Aquadilla name and complete street address Port Arthur (directional address OK if no street address San Angelo Arecibo Caguas exists). Do not provide a P.O. Box number as San Antonio the street address. In addition, provide the Sherman—Denison Cayey Humacao latitude and longitude of the facility to the Temple nearest 15 seconds of the approximate center Texarkana, TX—Texarkana, AR Mayaguez Ponce of the site (if you do not know your site’s Texas City latitude and longitude, call 1–800–USA– San Juan Tyler MAPS). Victoria Vega Baja—Manati Section III. Exposure Checklist Waco Appendix 4 to Preamble Wichita Falls Circle ‘‘Yes’’ or ‘‘No’’ as appropriate to Checklist for No-Exposure Certification for describe conditions at your facility. For the Utah NPDES Storm Water Permitting purposes of this document, ‘‘material’’ is Logan defined as any raw material, intermediate Instructions—EPA Form XXX–X Ogden product, finished product, by-product or Provo—Orem Who May File a No-Exposure Certification waste product, however packaged. ‘‘Material Salt Lake City In accordance with the Clean Water Act, all handling activities’’, by definition, include storage, loading and/or unloading, Vermont industrial facilities that discharge storm transportation or conveyance of a raw water meeting the definition of storm water Burlington material, intermediate product, finished associated with industrial activity must product, by-product or waste product. Virginia apply for coverage under a National Pollutant Bristol, TN—Bristol, VA Discharge Elimination System (NPDES) Interpretation of Results Charlottesville permit. However, permit coverage is not If you answer ‘‘Yes’’ to ANY of questions Danville required at facilities that can certify a ‘‘no- a. through r. in Section III, a potential for Fredericksburg exposure’’ condition exists. This document exposure exists at your site and you cannot Kingsport, TN—VA may be used to certify that at the facility certify a no-exposure condition exists. You Lynchburg described herein, a condition of no-exposure must obtain (or already have) coverage under Norfolk—Virginia Beach—Newport News exists. This certification is under the an NPDES Storm Water permit. After Petersburg auspices of the EPA only and must be made obtaining permit coverage, you can institute Richmond at least once every five years. Should the modifications to eliminate the potential for a Roanoke industrial activity change such that a discharge of storm water exposed to Washington, DC—MD—VA condition of no-exposure no longer exists, industrial activity, and then claim no- this certification is no longer valid and Washington exposure and terminate coverage under the coverage under an NPDES storm water existing permit. Bellingham permit must be sought. Bremerton Section IV. Certification Longview, WA—OR Definition of No-Exposure Federal statutes provide for severe Olympia No-exposure exists at an industrial facility penalties for submitting false information on Portland—Vancouver, OR—WA when all industrial materials or activities, this application form. Federal regulations Richland—Kennewick—Pasco including, but not limited to, material require this application to be signed as Seattle handling equipment, industrial machinery, follows: Spokane raw materials, intermediate products, by- For a corporation: by a responsible Tacoma products or waste products, however corporate officer, which means: (i) president, Yakima packaged, are protected by a storm-resistant secretary, treasurer, or vice-president of the shelter so as not to be exposed to rain, snow, corporation in charge of a principal business West Virginia snowmelt, or runoff. Adequately maintained function, or any other person who performs Charleston mobile equipment (trucks, automobiles, similar policy or decision making functions, Cumberland, MD—WV trailers or other such general purpose or (ii) the manager of one or more Hagerstown, MD—PA—WV vehicles found at the industrial site which manufacturing, production, or operating Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1613 facilities employing more than 250 persons For a partnership or sole proprietorship: by XXXXXXXXXXXXXXX or having gross annual sales or expenditures a general partner or the proprietor; or XXXXXXXXXXXXXXX exceeding $25 million (in second-quarter For a municipality, State, Federal, or other U.S. Environmental Protection Agency (4203) 1980 dollars) if authority to sign documents public facility: by either a principal executive 401 M St. SW has been assigned or delegated to the officer or ranking elected official. Washington, DC 20460 manager in accordance with corporate procedures [note, wording subject to change Where To File This Form BILLING CODE 6560±50±P as a result of NPDES streamlining, rnd. II]; Mail the completed form to: 1614 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1615

BILLING CODE 6560±50±C Clarifying, Consolidating, or Simplifying control measure on your behalf and to satisfy Appendix 5 to Preamble—Regulatory Compliance and Reporting Requirements your permit obligation. The proposed rule would allow a covered Flexibility for Small Entities The proposed rule would avoid duplication in permit requirements by small MS4 to ‘‘piggy-back’’ on to the storm A. Regulatory Flexibility for Municipal Storm allowing the NPDES permitting authority to water management program of an adjoining Sewer Systems (MS4s) incorporate by reference State, Tribal, or Phase I MS4. A small MS4 would be waived from the application requirements of local programs under a NPDES general Different Compliance, Reporting, or § 122.26(d)(1)(iii), (iv) and (d)(2)(iii) permit. Compliance with these programs Timetables That Are Responsive to Resources [discharge characterization] and may satisfy would be considered compliance with the of Small Entities the requirements of § 122.26(d)(1)(v) and NPDES general permit. NPDES permitting authority would issue (d)(2)(iv) [identifying a management plan] by The proposed rule would allow the NPDES referencing the adjoining Phase I MS4’s general permits instead of requiring permitting authority to recognize existing individual permits. This flexibility would storm water management plan. responsibilities among different municipal The proposed rule would accommodate the avoid the high application costs and entities to satisfy obligations for the use of the watershed approach through administrative burden associated with minimum control measures. For example, a NPDES general permits that could be issued individual permits. State program may address construction site on a watershed basis. A municipality could NPDES permitting authority could specify storm water runoff. Municipalities would be develop measures that are tailored to meet a time period of up to five years for small relieved of that obligation and would only be their watershed requirements. MS4s to fully develop and implement their responsible for the remaining minimum Municipalities’ storm water management program. control measures. program could tie into watershed-wide plans. The proposed rule would allow a small Analytic monitoring would not be MS4 to satisfy its NPDES permit obligations Performance Rather Than Design Standards required. if another governmental entity is already for Small Entities After the first permit term and subsequent implementing a minimum control measure in Small governmental jurisdictions whose permit terms, submittal of a summary report the jurisdiction of the small MS4. The MS4s are covered by this proposed rule would only be required in years two and following conditions would need to be met: would be allowed to choose the best four. Phase I municipalities are currently 1. The particular control measure (or management practices (BMPs) to be required to submit a detailed report each component thereof) is equivalent to what the implemented and the measurable goals for year. NPDES permit requires, each of the minimum control measures: Brief reporting format encouraged to 2. The other entity is implementing the 1. Public education and outreach on storm facilitate compiling and analyzing data from control measure, and water impacts. submitted reports. EPA would develop a 3. The small MS4 has requested, and the 2. Public Involvement/Participation. other entity has agreed to accept 3. Illicit discharge detection and model form for this purpose. responsibility for implementation of the elimination. 1616 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

4. Construction site storm water runoff (B) Case-by-Case Determination: A permit AZ Apache Junction control for sites of one or more acre. would not be required for sites having an AZ Chandler 5. Post-construction storm water annual soil loss less than 2 tons/acre/year. AZ El Mirage management in new development and The NPDES permitting authority could AZ Gilbert redevelopment for sites of one or more acre. waive from coverage construction activities AZ Guadalupe 6. Pollution prevention/good housekeeping disturbing from 1 acre up to 5 acres of land AZ Maricopa County for municipal operations. where the permitting authority determines AZ Oro Valley EPA would provide guidance and would that storm water controls are not needed AZ Paradise Valley recommend, but not mandate, certain BMPs based on: AZ Peoria for some of the minimum control measures 1. Implementation of a TMDL that AZ Pinal County listed above. addresses the pollutants of concern, or AZ South Tucson Small governmental jurisdictions would 2. Implementation of a comprehensive AZ Surprise identify the measurable goals for each of the watershed plan for the water body. AZ Tolleson AZ Youngtown minimum control measures listed above. In C. Regulatory Flexibility for Industrial/ AZ Yuma their reports to the NPDES permitting Commercial Facilities authority, the small MS4s would need to AZ Yuma County Waivers for Small Entities From Coverage evaluate their progress towards achievement AR Alexander of their identified measurable goals. The proposed rule would provide a ‘‘no- AR Barling Waivers for Small Entities From Coverage exposure’’ waiver provision for Phase I AR Benton County industrial/commercial facilities. Those AR Cammack Village The proposed rule would waiver from facilities seeking this provision would simply AR Crawford County coverage Indian Tribes located within an need to complete a self-certification form. AR Crittenden County urbanized area and whose population is less AR Farmington than or equal to 1,000 people. Appendix 6 of Preamble—Incorporated AR Fayetteville The proposed rule would allow the Places and Counties Proposed To Be AR Fort Smith permitting authority to waive from coverage Automatically Designated Under the Storm Water Phase II Proposed Rule (From the AR Greenland MS4s owned or operated by small AR Jacksonville governmental jurisdictions located within an 1990 Census of Population and Housing— U.S. Census Bureau) AR Jefferson County urbanized area and serving a population less AR Johnson than or equal to 1,000 people where the (This List May Change With the Decennial AR Marion permitting authority determines: Census) AR Miller County 1. Implementation of a TMDL that AR North Little Rock addresses the pollutants of concern, or AL Anniston AL Attalla AR Pine Bluff 2. Implementation of a comprehensive AR Pulaski County watershed plan for the water body. AL Auburn AL Autauga County AR Saline County B. Regulatory Flexibility for Construction AL Blue Mountain AR Shannon Hills Activities AL Calhoun County AR Sherwood AR Springdale Different Compliance, Reporting, or AL Colbert County AL Dale County AR Sunset Timetables That Are Responsive to Resources AR Texarkana of Small Entities AL Decatur AL Dothan AR Van Buren The proposed rule would give the relevant AL Etowah County AR Washington County Director of the NPDES permitting program AL Flint City AR West Memphis discretion not to require the submittal of a AL Florence AR White Hall notice of intent (NOI) for coverage under a AL Gadsden CA Apple Valley NPDES general permit, thereby reducing AL Glencoe CA Belvedere administrative and financial burden. AL Grimes CA Benicia Currently, all construction sites disturbing AL Hartselle CA Brentwood greater than 5 acres must submit an NOI. AL Hobson City CA Butte County Clarifying, Consolidating, or Simplifying AL Hokes Bluff CA Capitola Compliance and Reporting Requirements AL Houston County CA Carmel-by-the-Sea The proposed rule would avoid AL Kinsey CA Carpinteria duplication by allowing the NPDES AL Lauderdale County CA Ceres permitting authority to incorporate by AL Lee County CA Chico reference State, Tribal, or local programs AL Madison County CA Compton AL Midland City under a NPDES general permit. Compliance CA Corte Madera AL Montgomery County CA Cotati with these programs would be considered AL Morgan County CA Davis compliance with the NPDES general permit. AL Muscle Shoals CA Del Rey Oaks Performance Rather Than Design Standards AL Napier Field CA Fairfax for Small Entities AL Northport CA Hesperia The operator of a covered construction AL Opelika CA Imperial County activity would select and implement the AL Oxford CA Lakewood BMPs most appropriate for the construction AL Phenix City CA Lancaster site based on the operator’s storm water AL Prattville CA Larkspur pollution prevention plan. AL Priceville CA Lodi AL Rainbow City CA Lompoc Waivers for Small Entities From Coverage AL Russell County CA Marin County Waivers could be granted based on the use AL Sheffield CA Marina of the revised Universal Soil Loss Equation. AL Southside CA Marysville Universal Soil Loss Equation (USLE) AL Sylvan Springs CA Merced (A) Default/Low-Risk Exemption: When AL Talladega County CA Merced County rainfall energy factor (R from Universal Soil AL Tuscaloosa CA Mill Valley Loss Equation) is less than 2 during periods AL Tuscaloosa County CA Monterey of construction activity, a permit would not AL Tuscumbia CA Monterey County be required. AL Weaver CA Morgan Hill Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1617

CA Napa CO Northglenn FL Lazy Lake CA Napa County CO Pueblo FL Lynn Haven CA Novato CO Pueblo County FL Malabar CA Pacific Grove CO Sheridan FL Marion County CA Palm Desert CO Thornton FL Martin County CA Palmdale CO Weld County FL Mary Esther CA Piedmont CO Westminster FL Melbourne CA Redding CO Wheat Ridge FL Melbourne Beach CA Rocklin CT Ansonia FL Melbourne Village CA Rohnert Park CT Bridgeport FL Naples CA Roseville CT Bristol FL New Smyrna Beach CA Ross CT Danbury FL Niceville CA San Anselmo CT Derby FL Ocala CA San Buenaventura (Ventura) CT Fairfield County FL Ocean Breeze Park CA San Francisco CT Groton FL Okaloosa County CA San Joaquin County CT Hartford FL Orange Park CA San Luis Obispo CT Hartford County FL Ormond Beach CA San Luis Obispo County CT Litchfield County FL Osceola County CA San Rafael CT Meriden FL Palm Bay CA Sand City CT Middlesex County FL Panama City CA Santa Barbara CT Middletown FL Parker CA Santa Barbara County CT Milford FL Ponce Inlet CA Santa Cruz CT Naugatuck FL Port Orange CA Santa Cruz County CT New Britain FL Port St. Lucie CA Santa Maria CT New Haven FL Punta Gorda CA Sausalito CT New Haven County FL Rockledge CA Scotts Valley CT New London FL Santa Rosa County CA Seaside CT New London County FL Satellite Beach CA Shasta County CT Norwalk FL Sewall’s Point CA Solano County CT Norwich FL Shalimar CA Sonoma County CT Shelton FL South Daytona CA Stanislaus County FL Springfield CT Tolland County CA Sutter County FL St. Johns County CT Waterbury CA Tiburon FL St. Lucie CT West Haven CA Tulare County FL St. Lucie County CT Windham County CA Vacaville FL Stuart CT Woodmont CA Victorville FL Sweetwater CA Villa Park DE Camden FL Titusville CA Visalia DE Dover FL Valparaiso CA Watsonville DE Kent County FL Vero Beach CA West Sacramento DE Newark FL Virginia Gardens CA Yolo County DE Wyoming FL Volusia County CA Yuba City FL Alachua County FL Walton County CA Yuba County FL Baldwin FL Weeki Wachee CO Adams County FL Bay County FL West Melbourne CO Arvada FL Belleair Shore FL Windermere CO Boulder FL Biscayne Park GA Albany CO Boulder County FL Brevard County GA Athens CO Bow Mar FL Callaway GA Bartow County CO Broomfield FL Cape Canaveral GA Bibb City CO Cherry Hills Village FL Cedar Grove GA Brunswick CO Columbine Valley FL Charlotte County GA Catoosa County CO Commerce City FL Cinco Bayou GA Centerville CO Douglas County FL Clay County GA Chattahoochee County CO Edgewater FL Cocoa GA Cherokee County CO El Paso County FL Cocoa Beach GA Chickamauga CO Englewood FL Collier County GA Clarke County CO Evans FL Daytona Beach GA Columbia County CO Federal Heights FL Daytona Beach Shores GA Columbus CO Fort Collins FL Destin GA Conyers CO Fountain FL Edgewater GA Dade County CO Garden City FL El Portal GA Dougherty County CO Glendale FL FLorida City GA Douglas County CO Golden FL Fort Pierce GA Douglasville CO Grand Junction FL Fort Walton Beach GA Fayette County CO Greeley FL Gainesville GA Floyd County CO Greenwood Village FL Gulf Breeze GA Fort Oglethorpe CO Jefferson County FL Hernando County GA Glynn County CO La Salle FL Hillsboro Beach GA Grovetown CO Lakeside FL Holly Hill GA Henry County CO Larimer County FL Indialantic GA Houston County CO Littleton FL Indian Harbour Beach GA Jones County CO Longmont FL Indian River County GA Lee County CO Manitou Springs FL Indian River Shores GA Lookout Mountain CO Mesa County FL Indian Shores GA Mountain Park CO Mountain View FL Kissimmee GA Oconee County 1618 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

GA Payne IL Columbia IL Hometown GA Rockdale County IL Cook County IL Homewood GA Rome IL Country Club Hills IL Indian Creek GA Rossville IL Countryside IL Indian Head Park GA Stockbridge IL Crest Hill IL Inverness GA Vernonburg IL Crestwood IL Itasca GA Walker County IL Crete IL Jerome GA Warner Robins IL Creve Coeur IL Jo Daviess County GA Winterville IL Crystal Lake IL Joliet GA Woodstock IL Darien IL Justice ID Ada County IL Decatur IL Kane County ID Ammon IL Deer Park IL Kankakee ID Bannock County IL Deerfield IL Kankakee County ID Bonneville County IL Des Plaines IL Kendall County ID Chubbuck IL Dixmoor IL Kenilworth ID Garden City IL Dolton IL Kildeer ID IDaho Falls IL Downers Grove IL La Grange ID Iona IL Dupo IL La Grange Park ID Pocatello IL DuPage County IL Lake in the Hills IL Addison IL East Alton IL Lake Barrington IL Algonquin IL East Dubuque IL Lake Bluff IL Alorton IL East Dundee IL Lake County IL Alsip IL East Hazel Crest IL Lake Forest IL Alton IL East Moline IL Lake Villa IL Antioch IL East Peoria IL Lake Zurich IL Arlington Heights IL East St. Louis IL Lakemoor IL Aroma Park IL Edwardsville IL Lakewood IL Aurora IL Elgin IL Lansing IL Bannockburn IL Elk Grove Village IL Leland Grove IL Barrington IL Elmhurst IL Libertyville IL Bartlett IL Elmwood Park IL Lincolnshire IL Bartonville IL Evanston IL Lincolnwood IL Batavia IL Evergreen Park IL Lindenhurst IL Beach Park IL Fairmont City IL Lisle IL Bedford Park IL Fairview Heights IL Lockport IL Belleville IL Flossmoor IL Lombard IL Bellevue IL Ford Heights IL Long Grove IL Bellwood IL Forest Park IL Loves Park IL Bensenville IL Forest View IL Lynwood IL Berkeley IL Forsyth IL Lyons IL Berwyn IL Fox Lake IL Machesney Park IL Bethalto IL Fox River Grove IL Macon County IL Bloomingdale IL Frankfort IL Madison IL Bloomington IL Franklin Park IL Madison County IL Blue Island IL Geneva IL Markham IL Bolingbrook IL Gilberts IL Marquette Heights IL Bourbonnais IL Glen Carbon IL Maryville IL Bradley IL Glen Ellyn IL Matteson IL Bridgeview IL Glencoe IL Maywood IL Broadview IL Glendale Heights IL McCook IL Brookfield IL Glenview IL McCullom Lake IL Brooklyn IL Glenwood IL McHenry IL Buffalo Grove IL Golf IL McHenry County IL Burbank IL Grandview IL McLean County IL Burnham IL Granite City IL Melrose Park IL Burr Ridge IL Grayslake IL Merrionette Park IL Cahokia IL Green Oaks IL Midlothian IL Calumet City IL Green Rock IL Milan IL Calumet Park IL Gurnee IL Moline IL Carbon Cliff IL Hainesville IL Monroe County IL Carol Stream IL Hampton IL Montgomery IL Carpentersville IL Hanover Park IL Morton IL Cary IL Harristown IL Morton Grove IL Caseyville IL Hartford IL Mount Prospect IL Centreville IL Harvey IL Mount Zion IL Champaign IL Harwood Heights IL Mundelein IL Champaign County IL Hawthorn Woods IL Naperville IL Cherry Valley IL Hazel Crest IL National City IL Chicago IL Henry County IL New Lenox IL Chicago Heights IL Hickory Hills IL New Millford IL Chicago Ridge IL Highland Park IL Niles IL Cicero IL Highwood IL Normal IL Clarendon Hills IL Hillside IL Norridge IL Coal Valley IL Hinsdale IL North Aurora IL Collinsville IL Hodgkins IL North Barrington IL Colona IL Hoffman Estates IL North Chicago Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1619

IL North Pekin IL Stickney IN Homecroft IL North Riverside IL Stone Park IN Howard County IL Northbrook IL Streamwood IN Indian Village IL Northfield IL Summit IN Jeffersonville IL Northlake IL Sunnyside IN Johnson County IL Norwood IL Swansea IN Kokomo IL O’Fallon IL Tazewell County IN Lafayette IL Oak Brook IL Thornton IN Lake County IL Oak Forest IL Tinley Park IN Lake Station IL Oak Grove IL Tower Lakes IN Lawrence IL Oak Lawn IL Troy IN Madison County IL Oak Park IL University Park IN Meridian Hills IL Oakbrook Terrace IL Urbana IN Merrillville IL Oakwood Hills IL Venice IN Mishawaka IL Olympia Fields IL Vernon Hills IN Monroe County IL Orland Hills IL Villa Park IN Muncie IL Orland Park IL Warrenville IN Munster IL Oswego IL Washington IN New Albany IL Palatine IL Washington Park IN New Chicago IL Palos Heights IL Waukegan IN New Haven IL Palos Hills IL West Chicago IN New Whiteland IL Palos Park IL West Dundee IN Newburgh IL Park City IL Westchester IN North Crows Nest IL Park Forest IL Western Springs IN Ogden Dunes IL Park Ridge IL Westmont IN Osceola IL Pekin IL Wheaton IN Portage IL Peoria IL Wheeling IN Porter IL Peoria County IL Will County IN Porter County IL Peoria Heights IL Willow Springs IN River Forest IL Phoenix IL Willowbrook IN Rocky Ripple IL Plainfield IL Wilmette IN Roseland IL Pontoon Beach IL Winfield IN Schererville IL Posen IL Winnebago County IN Seelyville IL Prospect Heights IL Winnetka IN Sellersburg IL Richton Park IL Winthrop Harbor IN Selma IL River Forest IL Wood Dale IN South Bend IL River Grove IL Wood River IN Southport IL Riverdale IL Woodridge IN Speedway IL Riverside IL Worth IN Spring Hill IL Riverwoods IL Zion IN St. John IL Robbins IN Allen County IN St. Joseph County IL Rock Island IN Anderson IN Terre Haute IL Rock Island County IN Beech Grove IN Tippecanoe County IL Rockdale IN Bloomington IN Vanderburgh County IL Rockton IN Boone County IN Vigo County IL Rolling Meadows IN Carmel IN Warren Park IL Romeoville IN Castleton IN Warrick County IL Roscoe IN Chesterfield IN West Lafayette IL Roselle IN Chesterton IN West Terre Haute IL Rosemont IN Clark County IN Westfield IL Round Lake IN Clarksville IN Whiteland IL Round Lake Beach IN Clermont IN Whiting IL Round Lake Heights IN Country Club Heights IN Williams Creek IL Round Lake Park IN Crown Point IN Woodlawn Heights IL Roxana IN Crows Nest IN Wynnedale IL Sangamon County IN Cumberland IN Yorktown IL Sauget IN Daleville IN Zionsville IL Sauk Village IN Delaware County IA Altoona IL Savoy IN Dyer IA Asbury IL Schaumburg IN East Chicago IA Bettendorf IL Schiller Park IN Edgewood IA Black Hawk County IL Shiloh IN Elkhart IA Buffalo IL Shorewood IN Elkhart County IA Carter Lake IL Silvis IN Evansville IA Cedar Falls IL Skokie IN Fishers IA Clive IL Sleepy Hollow IN Floyd County IA Coralville IL South Beloit IN Gary IA Council Bluffs IL South Chicago Heights IN Goshen IA Dubuque IL South Elgin IN Greenwood IA Dubuque County IL South Holland IN Griffith IA Elk Run Heights IL South Roxana IN Hamilton County IA Evansdale IL Southern View IN Hammond IA Hiawatha IL Springfield IN Hancock County IA Iowa City IL St. Charles IN Hendricks County IA Johnson County IL St. Clair County IN Highland IA Johnston IL Steger IN Hobart IA Le Claire 1620 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

IA Linn County KY Crescent Springs KY Pioneer Village IA Marion KY Crestview KY Plantation IA Norwalk KY Crestview Hills KY Plymouth Village IA Panorama Park KY Crossgate KY Poplar Hills IA Pleasant Hill KY Daviess County KY Prospect IA Polk County KY Dayton KY Raceland IA Pottawattamie County KY Douglass Hills KY Richlawn IA Raymond KY Druid Hills KY Riverwood IA Riverdale KY Edgewood KY Robinswood IA Robins KY Elsmere KY Rolling Fields IA Scott County KY Erlanger KY Rolling Hills IA Sergeant Bluff KY Fairmeade KY Russell IA Sioux City KY Fairview KY Seneca Gardens IA University Heights KY Flatwoods KY Shively IA Urbandale KY Florence KY Silver Grove IA Warren County KY Forest Hills KY South Park View IA Waterloo KY Fort Mitchell KY Southgate IA West Des Moines KY Fort Thomas KY Spring Mill IA Windsor Heights KY Fort Wright KY Spring Valley KS Bel Aire KY Fox Chase KY Springlee KS Countryside KY Glenview KY St. Matthews KS Doniphan County KY Glenview Hills KY St. Regis Park KS Douglas County KY Glenview Manor KY Strathmoor Gardens KS Eastborough KY Goose Creek KY Strathmoor Manor KS Elwood KY Graymoor-Devondale KY Strathmoor Village KS Fairway KY Green Spring KY Sycamore KS Haysville KY Greenup County KY Taylor Mill KS Johnson County KY Hebron Estates KY Ten Broeck KS Kechi KY Henderson KY Thornhill KS Lake Quivira KY Henderson County KY Villa Hills KS Lawrence KY Hickory Hill KY Watterson Park KS Leawood KY Highland Heights KY Wellington KS Lenexa KY Hills and Dales KY West Buechel KS Merriam KY Hillview KY Westwood KS Mission KY Hollow Creek KY Whipps Millgate KS Mission Hills KY Hollyvilla KY Wilder KS Mission Woods KY Houston Acres KY Wildwood KS Olathe KY Hunters Hollow KY Winding Falls KS Park City KY Hurstbourne KY Windy Hills KS Prairie Village KY Hurstbourne Acres KY Woodland Hills KS Roeland Park KY Independence KY Woodlawn KS Sedgwick County KY Indian Hills KY Woodlawn Park KS Shawnee KY Indian Hills Cherokee Section KY Worthington KS Shawnee County KY Jeffersontown KY Wurtland KS Westwood KY Jessamine County LA Alexandria KS Westwood Hills KY Keeneland LA Baker KY Alexandria KY Kenton County LA Ball KY Anchorage KY Kenton Vale LA Bossier City KY Ashland KY Kingsley LA Bossier Parish KY Audubon Park KY Lakeside Park LA Broussard KY Bancroft KY Langdon Place LA Caddo Parish KY Barbourmeade KY Latonia Lakes LA Calcasieu Parish KY Beechwood Village KY Lincolnshire LA Carencro KY Bellefonte KY Ludlow LA Denham Springs KY Bellemeade KY Lyndon LA East Baton Rouge Parish KY Bellevue KY Lynnview LA Houma KY Bellewood KY Manor Creek LA Lafayette KY Blue Ridge Manor KY Maryhill Estates LA Lafayette Parish KY Boone County KY Meadow Vale LA Lafourche Parish KY Boyd County KY Meadowbrook Farm LA Lake Charles KY Briarwood KY Meadowview Estates LA Livingston Parish KY Broad Fields KY Melbourne LA Monroe KY Broeck Pointe KY Middletown LA Ouachita Parish KY Bromley KY Minor Lane Heights LA Pineville KY Brownsboro Farm KY Mockingbird Valley LA Plaquemines Parish KY Brownsboro Village KY Moorland LA Port Allen KY Bullitt County KY Murray Hill LA Rapides Parish KY Cambridge KY Newport LA Richwood KY Campbell County KY Norbourne Estates LA Scott KY Catlettsburg KY Northfield LA Slidell KY Cherrywood Village KY Norwood LA St. Bernard Parish KY Christian County KY Oak Grove LA St. Charles Parish KY Cold Spring KY Old Brownsboro Place LA St. Tammany Parish KY Covington KY Owensboro LA Sulphur KY Creekside KY Park Hills LA Terrebonne Parish KY Crescent Park KY Parkway Village LA West Baton Rouge Parish Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1621

LA West Monroe MA Chelsea MI Fraser LA Westlake MA Chicopee MI Garden City LA Zachary MA Essex County MI Genesee County ME Androscoggin County MA Everett MI Gibraltar ME Auburn MA Fall River MI Grand Blanc ME Bangor MA Fitchburg MI Grandville ME Brewer MA Gloucester MI Grosse Pointe ME Cumberland County MA Hampden County MI Grosse Pointe Farms ME Lewiston MA Hampshire County MI Grosse Pointe Park ME Old Town MA Haverhill MI Grosse Pointe Shores ME Penobscot County MA Holyoke MI Grosse Pointe Woods ME Portland MA Lawrence MI Hamtramck ME South Portland MA Leominster MI Harper Woods ME Westbrook MA Lowell MI Hazel Park ME York County MA Lynn MI Highland Park MA Malden MI Holland MD Allegany County MA Marlborough MI Hudsonville MD Annapolis MA Medford MI Huntington Woods MD Bel Air MA Melrose MI Ingham County MD Berwyn Heights MA Middlesex County MI Inkster MD Bladensburg MA New Bedford MI Jackson MD Bowie MA Newton MI Jackson County MD Brentwood MA Norfolk County MI Kalamazoo MD Brookeville MA Northampton MI Kalamazoo County MD Capitol Heights MA Peabody MI Keego Harbor MD Cecil County MA Pittsfield MI Kent County MD Cheverly MA Plymouth County MI Kentwood MD Chevy Chase MA Quincy MI Lake Angelus MD Chevy Chase Section Five MA Revere MI Lansing MD Chevy Chase Section Three MA Salem MI Lathrup Village MD Chevy Chase Village MA Somerville MI Lincoln Park MD College Park MA Springfield MI Livonia MD Colmar Manor MA Suffolk County MI Macomb County MD Cottage City MA Taunton MI Madison Heights MD Cumberland MA Waltham MI Marysville MD District Heights MA Westfield MI Melvindale MD Edmonston MA Woburn MI Monroe County MD Elkton MA Worcester County MI Mount Clemens MD Fairmount Heights MI Allegan County MI Mount Morris MD Forest Heights MI Allen Park MI Muskegon MD Frederick MI Auburn Hills MI Muskegon County MD Frostburg MI Battle Creek MI Muskegon Heights MD Funkstown MI Bay City MI New Baltimore MD Gaithersburg MI Bay County MI Niles MD Garrett Park MI Belleville MI North Muskegon MD Glen Echo MI Benton Harbor MI Northville MD Glenarden MI Berkley MI Norton Shores MD Greenbelt MI Berrien County MI Novi MD Hagerstown MI Beverly Hills MI Oak Park MD Highland Beach MI Bingham Farms MI Oakland County MD Hyattsville MI Birmingham MI Orchard Lake Village MD Kensington MI Bloomfield Hills MI Ottawa County MD Landover Hills MI Burton MI Parchment MD Laurel MI Calhoun County MI Pleasant Ridge MD Martin’s Additions MI Cass County MI Plymouth MD Morningside MI Center Line MI Pontiac MD Mount Rainier MI Clarkston MI Port Huron MD New Carrollton MI Clawson MI Portage MD North Brentwood MI Clinton County MI River Rouge MD Riverdale MI Clio MI Riverview MD Rockville MI Davison MI Rochester MD Seat Pleasant MI Dearborn MI Rochester Hills MD Smithsburg MI Dearborn Heights MI Rockwood MD Somerset MI Detroit MI Romulus MD Takoma Park MI East Detroit MI Roosevelt Park MD University Park MI East Grand Rapids MI Roseville MD Walkersville MI East Lansing MI Royal Oak MD Washington Grove MI Eaton County MI Saginaw MD Williamsport MI Ecorse MI Saginaw County MA Attleboro MI Essexville MI Shoreham MA Barnstable County MI Farmington MI South Rockwood MA Berkshire County MI Farmington Hills MI Southfield MA Beverly MI Ferndale MI Southgate MA Bristol County MI Flat Rock MI Springfield MA Brockton MI Flushing MI St. Clair MA Cambridge MI Franklin MI St. Clair County 1622 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

MI St. Clair Shores MN Maplewood MS Moss Point MI St. Joseph MN Medicine Lake MS Ocean Springs MI Stevensville MN Medina MS Pascagoula MI Swartz Creek MN Mendota MS Pass Christian MI Sylvan Lake MN Mendota Heights MS Pearl MI Taylor MN Minnetonka MS Petal MI Trenton MN Minnetonka Beach MS Rankin County MI Troy MN Minnetrista MS Richland MI Utica MN Moorhead MS Ridgeland MI Walker MN Mound MS Southaven MI Walled Lake MN Mounds View MS Waveland MI Washtenaw County MN New Brighton MO Airport Drive MI Wayne MN New Hope MO Andrew County MI Wayne County MN Newport MO Arnold MI Westland MN North Oaks MO Avondale MI Wixom MN North St. Paul MO Ballwin MI Wolverine Lake MN Oakdale MO Battlefield MI Woodhaven MN Olmsted County MO Bel-Nor MI Wyandotte MN Orono MO Bel-Ridge MI Wyoming MN Osseo MO Bella Villa MI Ypsilanti MN Plymouth MO Bellefontaine Neighbors MI Zeeland MN Prior Lake MO Bellerive MI Zilwaukee MN Proctor MO Belton MN Andover MN Ramsey MO Berkeley MN Anoka MN Ramsey County MO Beverly Hills MN Apple Valley MN Robbinsdale MO Birmingham MN Arden Hills MN Rochester MO Black Jack MN Benton County MN Rosemount MO Blue Springs MN Birchwood Village MN Roseville MO Boone County MN Blaine MN Sartell MO Breckenridge Hills MN Bloomington MN Sauk Rapids MO Brentwood MN Brooklyn Center MN Savage MO Bridgeton MN Brooklyn Park MN Scott County MO Buchanan County MN Burnsville MN Sherburne County MO Calverton Park MN Champlin MN Shoreview MO Carl Junction MN Chanhassen MN Shorewood MO Carterville MN Circle Pines MN South St. Paul MO Cass County MN Clay County MN Spring Lake Park MO Charlack MN Coon Rapids MN Spring Park MO Chesterfield MN Cottage Grove MN St. Anthony MO Clarkson Valley MN Crystal MN St. Cloud MO Claycomo MN Dayton MN St. Louis County MO Clayton MN Deephaven MN St. Paul Park MO Cliff Village MN Dilworth MN Stearns County MO Columbia MN Duluth MN Sunfish Lake MO Cool Valley MN Eagan MN Tonka Bay MO Cottleville MN East Grand Forks MN Vadnais Heights MO Country Club MN Eden Prairie MN Victoria MO Country Club Hills MN Excelsior MN Waite Park MO Country Life Acres MN Falcon Heights MN WA County MO Crestwood MN Farmington MN Wayzata MO Creve Coeur MN Fridley MN West St. Paul MO Crystal Lake Park MN Gem Lake MN White Bear Lake MO Dellwood MN Golden Valley MN Willernie MO Dennis Acres MN Greenwood MN Woodbury MO Des Peres MN Ham Lake MN Woodland MO Duquesne MN Hennepin County MS Bay St. Louis MO Edmundson MN Hermantown MS Biloxi MO Ellisville MN Hilltop MS Brandon MO Fenton MN Hopkins MS Clinton MO Ferguson MN Houston County MS D’Iberville MO Flordell Hills MN Inver Grove Heights MS DeSoto County MO Florissant MN La Crescent MS Flowood MO Frontenac MN Lake Elmo MS Forrest County MO Gladstone MN Lakeville MS Gautier MO Glen Echo Park MN Landfall MS Gulfport MO Glenaire MN Lauderdale MS Hancock County MO Glendale MN Lexington MS Harrison County MO Grandview MN Lilydale MS Hattiesburg MO Grantwood Village MN Lino Lakes MS Hinds County MO Greendale MN Little Canada MS Horn Lake MO Greene County MN Long Lake MS Jackson County MO Hanley Hills MN Loretto MS Lamar County MO Hazelwood MN Mahtomedi MS Long Beach MO Hillsdale MN Maple Grove MS Madison MO Houston Lake MN Maple Plain MS Madison County MO Huntleigh Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1623

MO Iron Gates MO Velda Village NJ Camden MO Jackson County MO Velda Village Hills NJ Camden County MO Jasper County MO Vinita Park NJ Cape May County MO Jefferson County MO Vinita Terrace NJ Carlstadt MO Jennings MO Warson Woods NJ Carteret MO Joplin MO Weatherby Lake NJ Chatham MO Kimmswick MO Webb City NJ Chesilhurst MO Kinloch MO Webster Groves NJ Clayton MO Kirkwood MO Wellston NJ Clementon MO Ladue MO Westwood NJ Cliffside Park MO Lake St.Louis MO Wilbur Park NJ Clifton MO Lake Tapawingo MO Winchester NJ Closter MO Lake Waukomis MO Woodson Terrace NJ Collingswood MO Lakeshire MT Billings NJ Cresskill MO Leawood MT Cascade County NJ Cumberland County MO Lee’s Summit MT Great Falls NJ Deal MO Liberty MT Missoula NJ Demarest MO Mac Kenzie MT Missoula County NJ Dover MO Manchester MT Yellowstone County NJ Dumont MO Maplewood NJ Dunellen MO Marlborough NE Bellevue NJ East Newark MO Maryland Heights NE Boys Town NJ East Orange MO Moline Acres NE Dakota County NJ East Rutherford MO Normandy NE Douglas County NJ Eatontown MO North KS City NE La Vista NJ Edgewater MO Northmoor NE Lancaster County NJ Elizabeth MO Northwoods NE Papillion NJ Elmwood Park MO Norwood Court NE Ralston NJ Emerson MO O’Fallon NE Sarpy County NJ Englewood MO Oakland NE South Sioux City NJ Englewood Cliffs MO Oakland Park NH Dover NJ Englishtown MO Oaks NH Hillsborough County NJ Essex County MO Oakview NH Manchester NJ Fair Haven MO Oakwood NH Merrimack County NJ Fair Lawn MO Oakwood Park NH Nashua NJ Fairview MO Olivette NH Portsmouth NJ Fanwood MO Overland NH Rochester NJ Fieldsboro MO Pagedale NH Rockingham County NJ Florham Park MO Parkdale NH Somersworth NJ Fort Lee MO Parkville NH Strafford County NJ Franklin Lakes MO Pasadena Hills NJ Absecon NJ Freehold MO Pasadena Park NJ Allendale NJ Garfield MO Pine Lawn NJ Allenhurst NJ Garwood MO Platte County NJ Alpha NJ Gibbsboro MO Platte Woods NJ Alpine NJ Glassboro MO Pleasant Valley NJ Asbury Park NJ Glen Rock MO Randolph NJ Atlantic City NJ Gloucester City MO Raymore NJ Atlantic County NJ Gloucester County MO Raytown NJ Atlantic Highlands NJ Guttenberg MO Redings Mill NJ Audubon NJ Hackensack MO Richmond Heights NJ Audubon Park NJ Haddon Heights MO Riverside NJ Avon-by-the-Sea NJ Haddonfield MO Riverview NJ Barrington NJ Haledon MO Rock Hill NJ Bay Head NJ Harrington Park MO Saginaw NJ Bayonne NJ Harrison MO Shoal Creek Drive NJ Beachwood NJ Hasbrouck Heights MO Shrewsbury NJ Bellmawr NJ Haworth MO Silver Creek NJ Belmar NJ Hawthorne MO St. Ann NJ Bergen County NJ Helmetta MO St. Charles NJ Bergenfield NJ Hi-Nella MO St. Charles County NJ Berlin NJ Highland Park MO St. George NJ Bernardsville NJ Highlands MO St. John NJ Beverly NJ Hillsdale MO St. Joseph NJ Bloomingdale NJ Ho-Ho-Kus MO St. Louis NJ Bogota NJ Hoboken MO St. Louis County NJ Boonton NJ Hopatcong MO St. Peters NJ Bordentown NJ Hudson County MO Sugar Creek NJ Bound Brook NJ Hunterdon County MO Sunset Hills NJ Bradley Beach NJ Interlaken MO Sycamore Hills NJ Brielle NJ Island Heights MO Town and Country NJ Brigantine NJ Jamesburg MO Twin Oaks NJ Brooklawn NJ Jersey City MO Unity Village NJ Buena NJ Keansburg MO University City NJ Burlington NJ Kearny MO Uplands Park NJ Burlington County NJ Kenilworth MO Valley Park NJ Butler NJ Keyport 1624 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

NJ Kinnelon NJ Pennington NJ Watchung NJ Lakehurst NJ Penns Grove NJ Wenonah NJ Laurel Springs NJ Perth Amboy NJ West Long Branch NJ Lavallette NJ Phillipsburg NJ West NY NJ Lawnside NJ Pine Beach NJ West Paterson NJ Leonia NJ Pine Hill NJ Westfield NJ Lincoln Park NJ Pine Valley NJ Westville NJ Linden NJ Pitman NJ Westwood NJ Lindenwold NJ Plainfield NJ Wharton NJ Linwood NJ Pleasantville NJ Wood-Ridge NJ Little Ferry NJ Point Pleasant NJ Woodbury NJ Little Silver NJ Point Pleasant Beach NJ Woodbury Heights NJ Loch Arbour NJ Pompton Lakes NJ Woodcliff Lake NJ Lodi NJ Prospect Park NJ Woodlynne NJ Long Branch NJ Rahway NM Bernalillo County NJ Longport NJ Ramsey NM Corrales NJ Madison NJ Raritan NM Dona Ana County NJ Magnolia NJ Red Bank NM Las Cruces NJ Manasquan NJ Ridgefield NM Los Ranchos de Albuquerque NJ Mantoloking NJ Ridgefield Park NM Mesilla NJ Manville NJ Ridgewood NM Rio Rancho NJ Margate City NJ Ringwood NM Santa Fe NJ Matawan NJ River Edge NM Santa Fe County NJ Maywood NJ Riverdale NM Sunland Park NJ Medford Lakes NJ Riverton NJ Mendham NJ Rockaway NY Albany NJ Mercer County NJ Rockleigh NY Albany County NY Amityville NJ Merchantville NJ Roseland NY Ardsley NJ Metuchen NJ Roselle NY Atlantic Beach NJ Middlesex NJ Roselle Park NY Babylon NJ Middlesex County NJ Rumson NY Baldwinsville NJ Midland Park NJ Runnemede NY Baxter Estates NJ Millstone NJ Rutherford NY Bayville NJ Milltown NJ Saddle River NY Beacon NJ Millville NJ Salem County NY Belle Terre NJ Monmouth Beach NJ Sayreville NY Bellerose NJ Monmouth County NJ Sea Bright NY Bellport NJ Montvale NJ Sea Girt NY Binghamton NJ Moonachie NJ Seaside Heights NY Blasdell NJ Morris County NJ Seaside Park NY Briarcliff Manor NJ Morris Plains NJ Secaucus NY Brightwaters NJ Morristown NJ Shrewsbury NY Bronxville NJ Mount Arlington NJ Somerdale NY Brookville NJ Mount Ephraim NJ Somers Point NY Broome County NJ Mountain Lakes NJ Somerset County NY Buchanan NJ Mountainside NJ Somerville NY Buffalo NJ National Park NJ South Amboy NY Camillus NJ Neptune City NJ South Belmar NY Cayuga Heights NJ Netcong NJ South Bound Brook NY Cedarhurst NJ New Brunswick NJ South Plainfield NY Chemung County NJ New Milford NJ South River NY Chestnut Ridge NJ New Providence NJ South Toms River NY Clayville NJ Newark NJ Spotswood NY Clinton NJ Newfield NJ Spring Lake NY Cohoes NJ North Arlington NJ Spring Lake Heights NY Colonie NJ North Haledon NJ Stanhope NY Cornwall on Hudson NJ North Plainfield NJ Stratford NY Croton-on-Hudson NJ Northfield NJ Summit NY Depew NJ Northvale NJ Sussex County NY Dobbs Ferry NJ Norwood NJ Tavistock NY Dutchess County NJ Oakland NJ Tenafly NY East Hills NJ Oaklyn NJ Teterboro NY East Rochester NJ Ocean City NJ Tinton Falls NY East Rockaway NJ Ocean County NJ Totowa NY East Syracuse NJ Ocean Gate NJ Trenton NY East Williston NJ Oceanport NJ Union Beach NY Elmira NJ Old Tappan NJ Union City NY Elmira Heights NJ Oradell NJ Union County NY Elmsford NJ Palisades Park NJ Upper Saddle River NY Endicott NJ Palmyra NJ Ventnor City NY Erie County NJ Paramus NJ Victory Gardens NY Fairport NJ Park Ridge NJ Vineland NY Farmingdale NJ Passaic NJ Waldwick NY Fayetteville NJ Passaic County NJ Wallington NY Fishkill NJ Paterson NJ Wanaque NY Floral Park NJ Paulsboro NJ Warren County NY Flower Hill Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1625

NY Fort Edward NY Nyack NY Warren County NY Freeport NY Old Brookville NY Washington County NY Garden City NY Old Westbury NY Waterford NY Glen Cove NY Oneida County NY Watervliet NY Glens Falls NY Onondaga County NY Webster NY Grand View-on-Hudson NY Orange County NY Wesley Hills NY Great Neck NY Orchard Park NY West Haverstraw NY Great Neck Estates NY Oriskany NY Westbury NY Great Neck Plaza NY Ossining NY Westchester County NY Green Island NY Oswego County NY White Plains NY Hamburg NY Patchogue NY Whitesboro NY Harrison NY Peekskill NY Williamsville NY Hastings-on-Hudson NY Pelham NY Williston Park NY Haverstraw NY Pelham Manor NY Woodsburgh NY Hempstead NY Phoenix NY Yonkers NY Herkimer County NY Piermont NY Yorkville NY Hewlett Bay Park NY Pittsford NC Alamance County NY Hewlett Harbor NY Plandome NC Apex NY Hewlett Neck NY Plandome Heights NC Archdale NY Hillburn NY Plandome Manor NC Asheville NY Horseheads NY Pleasantville NC Belmont NY Hudson Falls NY Pomona NC Belville NY Huntington Bay NY Poquott NC Bessemer City NY Irvington NY Port Chester NC Biltmore Forest NY Island Park NY Port Dickinson NC Black Mountain NY Islandia NY Port Jefferson NC Brookford NY Ithaca NY Port WA North NC Brunswick County NY Johnson City NY Poughkeepsie NC Buncombe County NY Kenmore NY Putnam County NC Burke County NY Kensington NY Rensselaer NC Burlington NY Kings Point NY Rensselaer County NC Cabarrus County NY Lackawanna NY Rochester NC Carrboro NY Lake Grove NY Rockland County NC Cary NY Lake Success NY Rockville Centre NC Catawba County NY Lancaster NY Rome NC Chapel Hill NY Lansing NY Roslyn NC China Grove NY Larchmont NY Roslyn Estates NC Clemmons NY Lattingtown NY Roslyn Harbor NC Concord NY Lawrence NY Russell Gardens NC Conover NY Lewiston NY Rye NC Cramerton NY Lindenhurst NY Rye Brook NC Dallas NY Liverpool NY Saddle Rock NC Davidson County NY Lloyd Harbor NY Sands Point NC Durham County NY Long Beach NY Saratoga County NC Edgecombe County NY Lynbrook NY Scarsdale NC Elon College NY Malverne NY Schenectady NC Fletcher NY Mamaroneck NY Schenectady County NC Forsyth County NY Manlius NY Scotia NC Garner NY Manorhaven NY Sea Cliff NC Gaston County NY Massapequa Park NY Shoreham NC Gastonia NY Matinecock NY Sloan NC Gibsonville NY Menands NY Sloatsburg NC Goldsboro NY Mill Neck NY Solvay NC Graham NY Mineola NY South Floral Park NC Greenville NY Minoa NY South Glens Falls NC Guilford County NY Monroe County NY South Nyack NC Harnett County NY Montebello NY Spencerport NC Haw River NY Mount Kisco NY Spring Valley NC Hickory NY Mount Vernon NY Stewart Manor NC High Point NY Munsey Park NY Suffern NC Hildebran NY Muttontown NY Suffolk County NC Hope Mills NY Nassau County NY Syracuse NC Indian Trail NY New Hartford NY Tarrytown NC Jacksonville NY New Hempstead NY Thomaston NC Jamestown NY New Hyde Park NY Tioga County NC Kannapolis NY New Rochelle NY Tompkins County NC Landis NY New Square NY Tonawanda NC Leland NY NY Mills NY Troy NC Long View NY Newburgh NY Tuckahoe NC Lowell NY Niagara County NY Ulster County NC Matthews NY Niagara Falls NY Upper Brookville NC McAdenville NY North Hills NY Upper Nyack NC Mebane NY North Syracuse NY Utica NC Mecklenburg County NY North Tarrytown NY Valley Stream NC Mint Hill NY North Tonawanda NY Village of the Branch NC Montreat NY Northport NY Wappingers Falls NC Mount Holly 1626 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

NC Nash County OH Chagrin Falls OH Licking County NC New Hanover County OH Chesapeake OH Lima NC Newton OH Cheviot OH Lincoln Heights NC Onslow County OH Cincinnati OH Linndale NC Orange County OH Clark County OH Lockland NC Pineville OH Clermont County OH Lorain NC Pitt County OH Cleveland OH Lorain County NC Randolph County OH Cleveland Heights OH Louisville NC Ranlo OH Cleves OH Loveland NC Rocky Mount OH Coal Grove OH Lowellville NC Rowan County OH Cridersville OH Lucas County NC Rural Hall OH Cuyahoga County OH Lyndhurst NC Spring Lake OH Cuyahoga Falls OH Macedonia NC Stallings OH Cuyahoga Heights OH Madeira NC Thomasville OH Deer Park OH Mahoning County NC Union County OH Delaware County OH Maineville NC Wake County OH Doylestown OH Mansfield NC Walkertown OH Dublin OH Maple Heights NC Wayne County OH East Cleveland OH Marble Cliff NC Weaverville OH Eastlake OH Mariemont NC Wilmington OH Elmwood Place OH Martins Ferry NC Winterville OH Elyria OH Mason NC Woodfin OH Englewood OH Massillon NC Wrightsville Beach OH Erie County OH Maumee ND Bismarck OH Euclid OH Mayfield ND Burleigh County OH Evendale OH Mayfield Heights ND Cass County OH Fairborn OH McDonald ND Fargo OH Fairfax OH Medina County ND Grand Forks OH Fairfield OH Mentor ND Grand Forks County OH Fairfield County OH Mentor-on-the-Lake ND Lincoln OH Fairlawn OH Meyers Lake ND Mandan OH Fairport Harbor OH Miami County ND Morton County OH Fairview Park OH Miamisburg ND West Fargo OH Forest Park OH Middleburg Heights OH Fort Shawnee OH Middletown OH Addyston OH Allen County OH Franklin OH Milford OH Amberley OH Franklin County OH Millbury OH Amelia OH Gahanna OH Millville OH Amherst OH Garfield Heights OH Minerva Park OH Arlington Heights OH Geauga County OH Mingo Junction OH Auglaize County OH Girard OH Mogadore OH Aurora OH Glendale OH Monroe OH Avon OH Glenwillow OH Montgomery OH Avon Lake OH Golf Manor OH Montgomery County OH Barberton OH Grand River OH Moraine OH Bay Village OH Grandview Heights OH Moreland Hills OH Beachwood OH Green OH Mount Healthy OH Beavercreek OH Greene County OH Munroe Falls OH Bedford OH Greenhills OH New Miami OH Bedford Heights OH Grove City OH New Middletown OH Bellaire OH Groveport OH New Rome OH Bellbrook OH Hamilton OH Newark OH Belmont County OH Hamilton County OH Newburgh Heights OH Belpre OH Hanging Rock OH Newtown OH Bentleyville OH Harbor View OH Niles OH Berea OH Hartville OH North Bend OH Bexley OH Heath OH North Canton OH Blue Ash OH Highland Heights OH North College Hill OH Brady Lake OH Hilliard OH North Olmsted OH Bratenahl OH Hills and Dales OH North Randall OH Brecksville OH Holland OH North Ridgeville OH Brice OH Hubbard OH North Royalton OH Bridgeport OH Huber Heights OH Northfield OH Brilliant OH Hudson OH Northwood OH Broadview Heights OH Independence OH Norton OH Brook Park OH Ironton OH Norwood OH Brooklyn OH Jefferson County OH Oakwood OH Brooklyn Heights OH Kent OH Oakwood OH Brookside OH Kettering OH Obetz OH Brunswick OH Kirtland OH Olmsted Falls OH Butler County OH Lake County OH Ontario OH Campbell OH Lakeline OH Orange OH Canfield OH Lakemore OH Oregon OH Canton OH Lakewood OH Ottawa County OH Carlisle OH Lawrence County OH Ottawa Hills OH Centerville OH Lexington OH Painesville Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1627

OH Parma OH Willoughby PA Archbald OH Parma Heights OH Willoughby Hills PA Arnold OH Pepper Pike OH Willowick PA Ashley OH Perrysburg OH Wintersville PA Aspinwall OH Poland OH Wood County PA Avalon OH Portage County OH Woodlawn PA Avoca OH Powell OH Woodmere PA Baden OH Proctorville OH Worthington PA Baldwin OH Ravenna OH Wyoming PA Beaver OH Reading OH Youngstown PA Beaver County OH Reminderville OK Arkoma PA Beaver Falls OH Reynoldsburg OK Bethany PA Bell Acres OH Richfield OK Bixby PA Belle Vernon OH Richland County OK Broken Arrow PA Bellevue OH Richmond Heights OK Canadian County PA Ben Avon OH Riverlea OK Catoosa PA Ben Avon Heights OH Riverside OK Choctaw PA Berks County OH Rocky River OK Cleveland County PA Bethel Park OH Rossford OK Comanche County PA Bethlehem OH Seven Hills OK Creek County PA Big Beaver OH Shadyside OK Del City PA Birdsboro OH Shaker Heights OK Edmond PA Blair County OH Sharonville OK Forest Park PA Blakely OH Shawnee Hills OK Hall Park PA Blawnox OH Sheffield OK Harrah PA Boyertown OH Sheffield Lake OK Jenks PA Brackenridge OH Silver Lake OK Jones PA Braddock OH Silverton OK Lake Aluma PA Braddock Hills OH Solon OK Lawton PA Bradfordwoods OH South Amherst OK Logan County PA Brentwood OH South Euclid OK Midwest City PA Bridgeport OH South Point OK Moffett PA Bridgeville OH South Russell OK Moore PA Bridgewater OH Springboro OK Mustang PA Bristol OH Springdale OK Nichols Hills PA Brookhaven OH Springfield OK Nicoma Park PA Brownstown OH St. Bernard OK Norman PA Brownsville OH Stark County OK Oklahoma County PA Bryn Athyn OH Steubenville OK Rogers County PA Bucks County OH Stow OK Sand Springs PA California OH Strongsville OK Sequoyah County PA Cambria County OH Struthers OK Smith Village PA Camp Hill OH Sugar Bush Knolls OK Spencer PA Canonsburg OH Summit County OK The Village PA Carbondale OH Sylvania OK Tulsa County PA Carnegie OH Tallmadge OK Valley Brook PA Castle Shannon OH Terrace Park OK Wagoner County PA Catasauqua OH The Village of Indian Hill OK Warr Acres PA Centre County OH Timberlake OK Woodlawn Park PA Chalfant OH Trenton OK Yukon PA Chalfont OH Trotwood PA Charleroi OH Trumbull County OR Central Point PA Chester OH Twinsburg OR Columbia County PA Chester County OH Union OR Durham PA Chester Heights OH University Heights OR Jackson County PA Cheswick OH Upper Arlington OR Keizer PA Churchill OH Urbancrest OR King City PA Clairton OH Valley View OR Lane County PA Clarks Green OH Valleyview OR Marion County PA Clarks Summit OH Vandalia OR Maywood Park PA Clifton Heights OH Vermilion OR Medford PA Coal Center OH Wadsworth OR Phoenix PA Coatesville OH Waite Hill OR Polk County PA Collegeville OH Walbridge OR Rainier PA Collingdale OH Walton Hills OR Springfield PA Columbia OH Warren OR Troutdale PA Colwyn OH Warren County OR Wood Village PA Conshohocken OH Warrensville Heights PA Adamsburg PA Conway OH Washington County PA Alburtis PA Coplay OH Wayne County PA Aldan PA Coraopolis OH West Carrollton City PA Aliquippa PA Courtdale OH West Milton PA Allegheny County PA Crafton OH Westerville PA Allenport PA Cumberland County OH Westlake PA Altoona PA Daisytown OH Whitehall PA Ambler PA Dale OH Wickliffe PA Ambridge PA Dallas 1628 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

PA Dallastown PA Highspire PA Mountville PA Darby PA Hollidaysburg PA Munhall PA Dauphin County PA Homestead PA Municipality of Monroeville PA Delaware County PA Homewood PA Municipality of Murrysville PA Delmont PA Houston PA Nanticoke PA Dickson City PA Hughestown PA Narberth PA Donora PA Hulmeville PA New Brighton PA Dormont PA Hummelstown PA New Britain PA Dover PA Hunker PA New Cumberland PA Downingtown PA Ingram PA New Eagle PA Doylestown PA Irwin PA New Galilee PA Dravosburg PA Ivyland PA New Kensington PA Duboistown PA Jacobus PA New Stanton PA Duncansville PA Jeannette PA Newell PA Dunlevy PA Jefferson PA Newtown PA Dunmore PA Jenkintown PA Norristown PA Dupont PA Jermyn PA North Belle Vernon PA Duquesne PA Jessup PA North Braddock PA Duryea PA Johnstown PA North Catasauqua PA East Conemaugh PA Kenhorst PA North Charleroi PA East Lansdowne PA Kingston PA North Irwin PA East McKeesport PA Koppel PA North Wales PA East Petersburg PA Lackawanna County PA North York PA East Pittsburgh PA Laflin PA Northampton PA East Rochester PA Lancaster PA Northampton County PA East Washington PA Lancaster County PA Norwood PA Easton PA Langhorne PA Oakmont PA Eastvale PA Langhorne Manor PA Old Forge PA Economy PA Lansdale PA Olyphant PA Eddystone PA Lansdowne PA Osborne PA Edgewood PA Larksville PA Paint PA Edgeworth PA Laurel Run PA Palmyra PA Edwardsville PA Laureldale PA Parkside PA Elco PA Lawrence County PA Patterson Heights PA Elizabeth PA Lebanon County PA Paxtang PA Ellport PA Leesport PA Penbrook PA Ellwood City PA Leetsdale PA Penn PA Emmaus PA Lehigh County PA Penndel PA Emsworth PA Lemoyne PA Pennsbury Village PA Erie PA Liberty PA Phoenixville PA Erie County PA Lincoln PA Pitcairn PA Etna PA Lititz PA Pittsburgh PA Exeter PA Loganville PA Pittston PA Export PA Lorain PA Pleasant Hills PA Fallston PA Lower Burrell PA Plum PA Farrell PA Luzerne PA Plymouth PA Fayette City PA Luzerne County PA Port Vue PA Fayette County PA Lycoming County PA Pottstown PA Ferndale PA Macungie PA Pringle PA Finleyville PA Madison PA Prospect Park PA Folcroft PA Malvern PA Rankin PA Forest Hills PA Manor PA Reading PA Forty Fort PA Marcus Hook PA Red Lion PA Fountain Hill PA Marysville PA Ridley Park PA Fox Chapel PA Mayfield PA Rochester PA Franklin PA McKees Rocks PA Rockledge PA Franklin County PA McKeesport PA Roscoe PA Franklin Park PA Mechanicsburg PA Rose Valley PA Freedom PA Media PA Rosslyn Farms PA Freemansburg PA Mercer County PA Royalton PA Geistown PA Middletown PA Royersford PA Glassport PA Millbourne PA Rutledge PA Glendon PA Millersville PA Scalp Level PA Glenfield PA Millvale PA Schwenksville PA Glenolden PA Modena PA Scranton PA Green Tree PA Mohnton PA Sewickley PA Greensburg PA Monaca PA Sewickley Heights PA Hallam PA Monessen PA Sewickley Hills PA Harrisburg PA Monongahela PA Sharon PA Harveys Lake PA Montgomery County PA Sharon Hill PA Hatboro PA Montoursville PA Sharpsburg PA Hatfield PA Moosic PA Sharpsville PA Haysville PA Morrisville PA Shillington PA Heidelberg PA Morton PA Shiremanstown PA Hellertown PA Mount Oliver PA Sinking Spring PA Hermitage PA Mount Penn PA Somerset County Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1629

PA Souderton PA York SC Fort Mill PA South Coatesville PA York County SC Georgetown County PA South Greensburg PA Youngwood SC Goose Creek PA South Heights PR Aguada Municipio SC Hanahan PA South Williamsport PR Aguadilla Municipio SC Horry County PA Southmont PR Aguas Buenas Municipio SC Irmo PA Southwest Greensburg PR Aibonito Municipio SC Isle of Palms PA Speers PR Anasco Municipio SC Lexington County PA Spring City PR Arecibo Municipio SC Lincolnville PA Springdale PR Bayamon Municipio SC Mount Pleasant PA St. Lawrence PR Cabo Rojo Municipio SC Myrtle Beach PA State College PR Caguas Municipio SC North Augusta PA Steelton PR Camuy Municipio SC North Charleston PA Stockdale PR Canovanas Municipio SC Pickens County PA Sugar Notch PR Carolina Municipio SC Pineridge PA Swarthmore PR Catano Municipio SC Quinby PA Swissvale PR Cayey Municipio SC Rock Hill PA Swoyersville PR Cidra Municipio SC South Congaree PA Tarentum PR Dorado Municipio SC Spartanburg PA Taylor PR Guaynabo Municipio SC Spartanburg County PA Telford PR Gurabo Municipio SC Springdale PA Temple PR Hatillo Municipio SC Sullivan’s Island PA Thornburg PR Hormigueros Municipio SC Summerville PA Throop PR Humacao Municipio SC Sumter PA Trafford PR Juncos Municipio SC Sumter County PA Trainer PR Las Piedras Municipio SC Surfside Beach PA Trappe PR Loiza Municipio SC West Columbia PA Tullytown PR Manati Municipio SC York County PA Turtle Creek PR Mayaguez Municipio SD Minnehaha County PA Upland PR Moca Municipio SD North Sioux City PA Verona PR Naguabo Municipio SD Pennington County PA Versailles PR Naranjito Municipio SD Rapid City PA Wall PR Penuelas Municipio TN Alcoa PA Warrior Run PR Ponce Municipio PA Washington TN Anderson County PR Rio Grande Municipio TN Bartlett PA Washington County PR San German Municipio PA Wernersville TN Blount County PR San Juan Municipio TN Brentwood PA Wesleyville PR San Lorenzo Municipio PA West Brownsville TN Bristol PR Toa Alta Municipio TN Carter County PA West Chester PR Toa Baja Municipio PA West Conshohocken TN Church Hill PR Trujillo Alto Municipio TN Clarksville PA West Easton PR Vega Alta Municipio PA West Elizabeth TN Collegedale PR Vega Baja Municipio TN East Ridge PA West Fairview PR Yabucoa Municipio PA West Homestead TN Elizabethton PA West Lawn RI Bristol County TN Farragut PA West Mayfield RI Central Falls TN Germantown PA West Middlesex RI Cranston TN Hamilton County PA West Mifflin RI East Providence TN Hawkins County PA West Newton RI Kent County TN Hendersonville PA West Pittston RI Newport TN Jackson PA West Reading RI Newport County TN Johnson City PA West View RI Pawtucket TN Jonesborough PA West Wyoming RI Providence TN Kingsport PA West York RI Providence County TN Knox County PA Westmont RI Warwick TN Lakesite PA Westmoreland County RI Washington County TN Lookout Mountain PA Wheatland RI Woonsocket TN Loudon County PA Whitaker SC Aiken TN Madison County PA White Oak SC Aiken County TN Maryville PA Wilkes-Barre SC Anderson TN Montgomery County PA Wilkinsburg SC Anderson County TN Mount Carmel PA Williamsport SC Arcadia Lakes TN Mount Juliet PA Wilmerding SC Berkeley County TN Red Bank PA Wilson SC Burnettown TN Ridgeside PA Windber SC Cayce TN Rockford PA Windsor SC Charleston TN Shelby County PA Wormleysburg SC Charleston County TN Signal Mountain PA Wrightsville SC Columbia TN Soddy-Daisy PA Wyoming SC Cowpens TN Sullivan County PA Wyomissing SC Darlington County TN Sumner County PA Wyomissing Hills SC Dorchester County TN Washington County PA Yardley SC Florence TN Wilson County PA Yatesville SC Florence County TX Addison PA Yeadon SC Folly Beach TX Alamo PA Yoe SC Forest Acres TX Alamo Heights 1630 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

TX Allen TX Harlingen TX Robinson TX Azle TX Hedwig Village TX Rockwall TX Balch Springs TX Hewitt TX Rockwall County TX Balcones Heights TX Hickory Creek TX Rollingwood TX Bayou Vista TX Hidalgo County TX Rose Hill Acres TX Baytown TX Highland Park TX Rowlett TX Bedford TX Highland Village TX Sachse TX Bell County TX Hill Country Village TX Saginaw TX Bellaire TX Hilshire Village TX San Angelo TX Bellmead TX Hitchcock TX San Benito TX Belton TX Hollywood Park TX San Juan TX Benbrook TX Howe TX San Patricio County TX Beverly Hills TX Humble TX Sansom Park TX Bexar County TX Hunters Creek Village TX Santa Fe TX Blue Mound TX Hurst TX Schertz TX Bowie County TX Hutchins TX Seabrook TX Brazoria County TX Impact TX Seagoville TX Brazos County TX Jacinto City TX Selma TX Brookside Village TX Jefferson County TX Shavano Park TX Brownsville TX Jersey Village TX Sherman TX Bryan TX Katy TX Shoreacres TX Buckingham TX Keller TX Smith County TX Bunker Hill Village TX Kemah TX Socorro TX Cameron County TX Kennedale TX South Houston TX Carrollton TX Killeen TX Southside Place TX Castle Hills TX Kirby TX Spring Valley TX Cedar Hill TX La Marque TX Stafford TX Cedar Park TX La Porte TX Sugar Land TX Cibolo TX Lacy-Lakeview TX Sunset Valley TX Clear Lake Shores TX Lake Dallas TX Tarrant County TX Clint TX Lake Worth TX Taylor County TX Cockrell Hill TX Lakeside TX Taylor Lake Village TX College Station TX Lakeside City TX Temple TX Colleyville TX Lancaster TX Terrell Hills TX Collin County TX League City TX Texarkana TX Combes TX Leander TX Texas City TX Converse TX Leon Valley TX Tom Green County TX Copperas Cove TX Lewisville TX Travis County TX Corinth TX Live Oak TX Tye TX Coryell County TX Longview TX Tyler TX Crowley TX Lubbock County TX Universal City TX Dallas County TX Lumberton TX University Park TX Dalworthington Gardens TX McAllen TX Victoria TX Deer Park TX McLennan County TX Victoria County TX Denison TX Meadows TX Wake Village TX Denton TX Midland TX Watauga TX Denton County TX Midland County TX Webb County TX DeSoto TX Mission TX Webster TX Dickinson TX Missouri City TX Weslaco TX Donna TX Montgomery County TX West Lake Hills TX Double Oak TX Morgan’s Point TX West University Place TX Duncanville TX Nash TX Westover Hills TX Ector County TX Nassau Bay TX Westworth TX Edgecliff TX Nederland TX White Oak TX Edinburg TX Nolanville TX White Settlement TX El Lago TX North Richland Hills TX Wichita County TX El Paso County TX Northcrest TX Wichita Falls TX Euless TX Nueces County TX Williamson County TX Everman TX Odessa TX Wilmer TX Farmers Branch TX Olmos Park TX Windcrest TX Flower Mound TX Palm Valley TX Woodway TX Forest Hill TX Palmview UT American Fork TX Fort Bend County TX Pantego UT Bluffdale TX Friendswood TX Pearland UT Bountiful TX Galena Park TX Pflugerville UT Cache County TX Galveston TX Pharr UT Cedar Hills TX Galveston County TX Piney Point Village UT Centerville TX Grand Prairie TX Port Arthur UT Clearfield TX Grapevine TX Port Neches UT Clinton TX Grayson County TX Portland UT Davis County TX Gregg County TX Potter County UT Draper TX Groves TX Primera UT Farmington TX Guadalupe County TX Randall County UT Farr West TX Haltom City TX Richardson UT Fruit Heights TX Hardin County TX Richland Hills UT Harrisville TX Harker Heights TX River Oaks UT Highland Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1631

UT Hyde Park VA Roanoke WA Yakima County UT Kaysville VA Roanoke County WA Yarrow Point UT Layton VA Salem WV Bancroft UT Lehi VA Scott County WV Barboursville UT Lindon VA Spotsylvania County WV Belle UT Logan VA Stafford County WV Benwood UT Mapleton VA Suffolk WV Berkeley County UT Midvale VA Vienna WV Bethlehem UT Millville VA Vinton WV Brooke County UT Murray VA Washington County WV Cabell County UT North Logan VA Weber City WV Cedar Grove UT North Ogden VA Williamsburg WV Ceredo UT North Salt Lake VA York County WV Charleston UT Ogden WA Algona WV Chesapeake UT Orem WA Auburn WV Clearview UT Pleasant Grove WA Beaux Arts Village WV Dunbar UT Pleasant View WA Bellevue WV East Bank UT Providence WA Bellingham WV Follansbee UT Provo WA Benton County WV Glasgow UT River Heights WA Bonney Lake WV Glen Dale UT Riverdale WA Bothell WV Hancock County UT Riverton WA Bremerton WV Huntington UT Roy WA Brier WV Hurricane UT Sandy WA Clyde Hill WV Kanawha County UT Smithfield WA Cowlitz County WV Kenova UT South Jordan WA Des Moines WV Marmet UT South Ogden WA DuPont WV Marshall County UT South Salt Lake WA Edmonds WV McMechen UT South Weber WA Everett WV Mineral County UT Springville WA Fife WV Moundsville UT Sunset WA Fircrest WV Nitro UT Syracuse WA Franklin County WV North Hills UT Uintah WA Gig Harbor WV Ohio County UT Utah County WA Hunts Point WV Parkersburg UT Washington Terrace WA Issaquah WV Poca UT Weber County WA Kelso WV Putnam County UT West Bountiful WA Kennewick WV Ridgeley UT West Jordan WA Kent WV South Charleston UT West Point WA Kirkland WV St. Albans UT West Valley City WA Kitsap County WV Triadelphia UT Woods Cross WA Lacey WV Vienna VT Burlington WA Lake Forest Park WV Wayne County VT Chittenden County WA Longview WV Weirton VT Essex Junction WA Lynnwood WV Wheeling VT South Burlington WA Marysville WV Wood County VT Winooski WA Medina WI Allouez VA Albemarle County WA Mercer Island WI Altoona VA Alexandria WA Mill Creek WI Appleton VA Amherst County WA Millwood WI Ashwaubenon VA Bedford County WA Milton WI Bayside VA Botetourt County WA Mountlake Terrace WI Beloit VA Bristol WA Mukilteo WI Big Bend VA Campbell County WA Normandy Park WI Brookfield VA Charlottesville WA Olympia WI Brown County VA Colonial Heights WA Pacific WI Brown Deer VA Danville WA Pasco WI Butler VA Dinwiddie County WA Port Orchard WI Calumet County VA Fairfax WA Puyallup WI Cedarburg VA Falls Church WA Redmond WI Chippewa County VA Fredericksburg WA Renton WI Chippewa Falls VA Gate City WA Richland WI Combined Locks VA Gloucester County WA Ruston WI Cudahy VA Hanover County WA Selah WI Dane County VA Herndon WA Spokane WI De Pere VA Hopewell WA Spokane County WI Eau Claire VA James City County WA Steilacoom WI Eau Claire County VA Loudoun County WA Sumner WI Elm Grove VA Lynchburg WA Thurston County WI Elmwood Park VA Manassas WA Tukwila WI Fitchburg VA Manassas Park WA Tumwater WI Fox Point VA Occoquan WA Union Gap WI Franklin VA Petersburg WA Vancouver WI Germantown VA Pittsylvania County WA West Richland WI Glendale VA Poquoson WA Whatcom County WI Grafton VA Prince George County WA Woodway WI Green Bay VA Richmond WA Yakima WI Greendale 1632 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

WI Greenfield Appendix 7 of Preamble—Incorporated FL Eustis WI Hales Corners Places and Counties Potentially Designated FL Key West WI Holmen (Outside Urbanized Areas)1 Under the Storm FL Leesburg WI Howard Water Phase II Proposed Rule FL Palatka WI Janesville FL St. Augustine [Proposed to be Examined by the Permitting FL St. Cloud WI Kaukauna Authority Under § 123.35(b)(2)] GA Americus WI Kenosha (From the 1990 Census of Population and WI Kenosha County GA Carrollton Housing—U.S. Census Bureau) GA Cordele WI Kimberly GA Dalton WI Kohler (This List May Change With the Decennial Census) GA Dublin WI La Crosse GA Griffin AL Jacksonville WI La Crosse County GA Hinesville AL Selma WI Lannon GA Moultrie WI Little Chute AZ Douglas GA Newnan WI Maple Bluff AK Arkadelphia GA Statesboro WI Marathon County AK Benton GA Thomasville WI McFarland AK Blytheville GA Tifton WI Menasha AK Conway GA Valdosta GA Waycross WI Menomonee Falls AK El Dorado WI Mequon AK Hot Springs ID Caldwell AK Magnolia WI Middleton ID Coeur D’alene AK Rogers WI Monona ID Lewiston AK Searcy ID Moscow WI Muskego AK Stuttgart ID Nampa WI Neenah CA Arcata ID Rexburg WI New Berlin CA Arroyo Grande ID Twin Falls WI North Bay CA Atwater IL Belvidere WI Oak Creek CA Auburn IL Canton WI Onalaska CA Brawley IL Carbondale WI Oshkosh CA Calexico IL Centralia WI Outagamie County CA Clearlake IL Charleston WI Ozaukee County CA Corcoran IL Danville WI Pewaukee CA Delano IL De Kalb WI Pleasant Prairie CA Dinuba IL Dixon CA Dixon WI Racine IL Effingham CA El Centro WI Racine County IL Freeport CA El Paso De Robles IL Galesburg WI River Hills CA Eureka IL Herrin WI Rock County CA Gilroy IL Jacksonville WI Rothschild CA Grover City IL Kewanee WI Schofield CA Hanford IL Lincoln WI Sheboygan CA Hollister IL Macomb WI Sheboygan County CA Lemoore IL Marion WI Sheboygan Falls CA Los Banos IL Mattoon WI Shorewood CA Madera IL Morris CA Manteca WI Shorewood Hills IL Mount Vernon CA Oakdale WI South Milwaukee IL Ottawa CA Oroville IL Pontiac WI St. Francis CA Paradise IL Quincy WI Sturtevant CA Petaluma IL Rantoul WI Superior CA Porterville IL Sterling WI Superior CA Red Bluff IL Streator WI Sussex CA Reedley IL Taylorville WI Thiensville CA Ridgecrest IL Woodstock CA Sanger WI Washington County IN Bedford CA Selma WI Waukesha IN Columbus CA Tracy WI Waukesha County IN Connersville CA Tulare WI Wausau IN Crawfordsville CA Turlock IN Frankfort WI Wauwatosa CA Ukiah IN Franklin WI West Allis CA Wasco IN Greenfield WI West Milwaukee CA Woodland WI Whitefish Bay IN Huntington CO Canon City IN Jasper WI Wind Point CO Durango IN La Porte WI Winnebago County CO Lafayette IN Lebanon WY Casper CO Louisville IN Logansport WY Cheyenne CO Loveland IN Madison WY Evansville CO Sterling IN Marion WY Laramie County FL De Land IN Martinsville WY Mills IN Michigan City WY Natrona County 1 Listed incorporated places have at least 10,000 IN New Castle population and 1,000 population density. Please IN Noblesville note that no counties meet the 10,000/1,000 IN Peru threshold. IN Plainfield Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1633

IN Richmond MD Aberdeen NE Beatrice IN Seymour MD Cambridge NE Columbus IN Shelbyville MD Salisbury NE Fremont IN Valparaiso MD Westminster NE Grand Island IN Vincennes MA Newburyport NE Hastings IN Wabash NE Kearney IN Warsaw MI Adrian NE Norfolk IN Washington MI Albion NE North Platte MI Alpena NE Scottsbluff IA Ames MI Big Rapids IA Ankeny MI Cadillac NV Elko IA Boone MI Escanaba NJ Bridgeton IA Burlington MI Grand Haven NJ Princeton Borough IA Fort Dodge MI Marquette IA Fort Madison NM Alamogordo MI Midland NM Artesia IA Indianola MI Monroe IA Keokuk NM Clovis MI Mount Pleasant NM Deming IA Marshalltown MI Owosso IA Mason City NM Farmington MI Sturgis NM Gallup IA Muscatine MI Traverse City IA Newton NM Hobbs IA Oskaloosa MN Albert Lea NM Las Vegas IA Ottumwa MN Austin NM Portales IA Spencer MN Bemidji NM Roswell MN Brainerd NM Silver City KS Arkansas City MN Faribault KS Atchison NY Amsterdam MN Fergus Falls KS Coffeyville NY Auburn MN Hastings KS Derby NY Batavia MN Hutchinson KS Dodge City NY Canandaigua MN Mankato KS El Dorado NY Corning MN Marshall KS Emporia NY Cortland MN New Ulm KS Garden City NY Dunkirk MN North Mankato KS Great Bend NY Fredonia MN Northfield KS Hays NY Fulton MN Owatonna KS Hutchinson NY Geneva KS Junction City MN Stillwater NY Gloversville KS Leavenworth MN Willmar NY Jamestown KS Liberal MN Winona NY Kingston KS Manhattan MS Brookhaven NY Lockport KS Mcpherson MS Canton NY Massena KS Newton MS Clarksdale NY Middletown KS Ottawa MS Cleveland NY Ogdensburg KS Parsons MS Columbus NY Olean KS Pittsburg MS Greenville NY Oneonta KS Salina MS Greenwood NY Oswego KS Winfield MS Grenada NY Plattsburgh MS Indianola NY Potsdam KY Bowling Green NY Watertown KY Danville MS Laurel KY Frankfort MS Mccomb NC Albemarle KY Georgetown MS Meridian NC Asheboro KY Glasgow MS Natchez NC Boone KY Hopkinsville MS Starkville NC Eden KY Madisonville MS Vicksburg NC Elizabeth City KY Middlesborough MS Yazoo City NC Havelock KY Murray MO Cape Girardeau NC Henderson KY Nicholasville MO Carthage NC Kernersville KY Paducah MO Excelsior Springs NC Kinston KY Radcliff MO Farmington NC Laurinburg KY Richmond MO Hannibal NC Lenoir KY Somerset MO Jefferson City NC Lexington KY Winchester MO Kennett NC Lumberton NC Monroe LA Abbeville MO Kirksville NC New Bern LA Bastrop MO Marshall NC Reidsville LA Bogalusa MO Maryville NC Roanoke Rapids LA Crowley MO Mexico LA Eunice MO Moberly NC Salisbury LA Hammond MO Poplar Bluff NC Sanford LA Jennings MO Rolla NC Shelby LA Minden MO Sedalia NC Statesville LA Morgan City MO Sikeston NC Tarboro LA Natchitoches MO Warrensburg NC Wilson LA New Iberia MO Washington ND Dickinson LA Opelousas MT Bozeman ND Jamestown LA Ruston MT Havre ND Minot LA Thibodaux MT Helena ND Williston ME Waterville MT Kalispell OH Alliance 1634 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

OH Ashland PA Butler TX Mount Pleasant OH Ashtabula PA Carlisle Borough TX Nacogdoches OH Athens PA Chambersburg Borough TX New Braunfels OH Bellefontaine PA Ephrata Borough TX Palestine OH Bowling Green PA Hazleton TX Pampa OH Bucyrus PA Indiana Borough TX Pecos OH Cambridge PA Lebanon TX Plainview OH Chillicothe PA Meadville TX Port Lavaca OH Circleville PA New Castle TX Robstown OH Coshocton PA Oil City TX Rosenberg OH Defiance PA Pottsville TX Round Rock OH Delaware PA Sunbury TX San Marcos OH Dover PA Uniontown TX Seguin OH East Liverpool PA Warren TX Snyder OH Findlay SC Clemson TX Stephenville OH Fostoria SC Easley TX Sweetwater OH Fremont SC Gaffney TX Taylor OH Galion SC Greenwood TX The Colony OH Greenville SC Newberry TX Uvalde OH Lancaster SC Orangeburg TX Vernon OH Lebanon TX Vidor OH Marietta SD Aberdeen SD Brookings UT Brigham City OH Marion UT Cedar City OH Medina SD Huron SD Mitchell UT Spanish Fork OH Mount Vernon UT Tooele OH New Philadelphia SD Vermillion OH Norwalk SD Watertown VT Rutland OH Oxford SD Yankton VA Blacksburg OH Piqua TN Brownsville VA Christiansburg OH Portsmouth TN Cleveland VA Front Royal OH Salem TN Collierville VA Harrisonburg OH Sandusky TN Cookeville VA Leesburg OH Sidney TN Dyersburg VA Martinsville OH Tiffin TN Greeneville VA Radford OH Troy TN Lawrenceburg VA Staunton OH Urbana TN Mcminnville VA Waynesboro OH Van Wert TN Millington VA Winchester OH Washington TN Morristown WA Aberdeen OH Wilmington TN Murfreesboro WA Anacortes OH Wooster TN Shelbyville WA Centralia OH Xenia TN Springfield WA Ellensburg OH Zanesville TN Union City WA Moses Lake OK Ada TX Alice WA Mount Vernon OK Altus TX Alvin WA Oak Harbor OK Bartlesville TX Andrews WA Port Angeles OK Chickasha TX Angleton WA Pullman OK Claremore TX Bay City WA Sunnyside OK Mcalester TX Beeville WA Walla Walla OK Miami TX Big Spring WA Wenatchee OK Muskogee TX Borger WV Beckley OK Okmulgee TX Brenham WV Bluefield OK Owasso TX Brownwood WV Clarksburg OK Ponca City TX Burkburnett WV Fairmont OK Stillwater TX Canyon WV Martinsburg OK Tahlequah TX Cleburne WV Morgantown OK Weatherford TX Conroe TX Coppell WI Beaver Dam OR Albany TX Corsicana WI Fond du Lac OR Ashland TX Del Rio WI Fort Atkinson OR Astoria TX Dumas WI Manitowoc OR Bend TX Eagle Pass WI Marinette OR City of the Dalles TX El Campo WI Marshfield OR Coos Bay TX Gainesville WI Menomonie OR Corvallis TX Gatesville WI Monroe OR Grants Pass TX Georgetown WI Oconomowoc OR Hermiston TX Henderson WI River Falls OR Klamath Falls TX Hereford WI Stevens Point OR La Grande TX Huntsville WI Sun Prairie OR Lebanon TX Jacksonville WI Two Rivers OR Mcminnville TX Kerrville WI Watertown OR Newberg TX Kingsville WI West Bend OR Pendleton TX Lake Jackson WI Whitewater OR Roseburg TX Lamesa WI Wisconsin Rapids OR Woodburn TX Levelland WY Evanston PA Berwick Borough TX Lufkin WY Gillette PA Bloomsburg TX Mercedes WY Green River Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1635

WY Laramie (a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of treatment, storage, or disposal; shipping WY Rock Springs this section, shall seek coverage under and receiving areas; manufacturing WY Sheridan an NPDES permit in accordance with buildings; storage areas (including tank For the reasons set forth in the §§ 122.33 through 122.35. Owners or farms) for raw materials, and preamble, chapter I of title 40 of the operators of non-municipal sources intermediate and finished products; and Code of Federal Regulations is proposed designated pursuant to paragraphs areas where industrial activity has taken to be amended as follows: (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of place in the past and significant this section, shall seek coverage under materials remain and are exposed to PART 122ÐEPA ADMINISTERED an NPDES permit in accordance with storm water. The term excludes areas PERMIT PROGRAMS: THE NATIONAL paragraph (c)(1) of this section. located on plant lands separate from the POLLUTANT DISCHARGE (iii) Owners or operators of storm plant’s industrial activities, such as ELIMINATION SYSTEM water discharges designated pursuant to office buildings and accompanying 1. The authority citation for part 122 paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of parking lots as long as the drainage from continues to read as follows: this section, shall apply to the Director the excluded areas is not mixed with for a permit within 180 days of receipt storm water drained from the above Authority: The Clean Water Act, 33 U.S.C. of notice, unless permission for a later described areas. 1251 et seq. date is granted by the Director (see * * * * * 2. In § 122.26, revise paragraphs (a)(9), § 124.52(c) of this chapter). (xi) Facilities under Standard (b)(4)(i), (b)(7)(i), (b)(8)(i), (b)(14) * * * * * Industrial Classifications 20, 21, 22, 23, introductory text, (b)(14)(xi); redesignate (b) * * * 2434, 25, 265, 267, 27, 283, 285, 30, 31 paragraph (b)(15) as paragraph (b)(17) (4) * * * (except 311), 323, 34 (except 3441), 35, and add new paragraphs (b)(15) and (i) Located in an incorporated place 36, 37 (except 373), 38, 39, 4221–25; (b)(16); revise paragraph (c) heading, with a population of 250,000 or more as * * * * * paragraphs (c)(1) introductory text first determined by the 1990 Decennial (15) Storm water discharges sentence, (c)(1)(i) introductory text, Census by the Bureau of the Census associated with other activity means the (c)(1)(i)(C) first sentence, (c)(1)(i)(E) (appendix F of this part); or discharge from any conveyance used for introductory text, (c)(1)(ii) first sentence * * * * * collecting and conveying storm water of introductory text, (e)(1)(ii); add (7) * * * that needs to be regulated to protect paragraph (e)(1)(iii); revise paragraphs (i) Located in an incorporated place water quality. For the categories of (f)(4), (f)(5), and (g) to read as follows: with a population of 100,000 or more facilities identified in this paragraph, but less than 250,000, as determined by § 122.26 Storm water discharges the term includes the entire facility (applicable to State NPDES programs, see the 1990 Decennial Census by the except areas located at the facility § 123.25). Bureau of the Census (appendix G of separated from the plant’s operational this part); or (a) * * * activities. Such separated areas may (9)(i) On and after October 1, 1994, for * * * * * include office buildings and discharges composed entirely of storm (8) * * * accompanying parking lots, as long as water, that are not otherwise already (i) Owned or operated by the United the drainage from the separated areas is required by paragraph (a)(1) of this States, a State, city, town, borough, not mixed with storm water drained section to obtain a permit, owners or county, parish, district, association, or from the plant’s operational activities. operators shall be required to obtain a other public body (created by or The following types of facilities or NPDES permit if: pursuant to State law) having activities are sources of ‘‘storm water (A) The discharge is from a small jurisdiction over disposal of sewage, discharges associated with other municipal separate storm sewer system industrial wastes, storm water, or other activity’’ for the purposes of this required to be regulated pursuant to wastes, including special districts under paragraph: § 122.32; State law such as a sewer district, flood (i) Construction activities. (A) (B) The discharge is a storm water control district or drainage district, or Construction activities including discharge associated with other activity similar entity, or an Indian tribe or an clearing, grading, and excavating pursuant to paragraph (b)(15) of this authorized Indian tribal organization, or activities that result in land disturbance section; a designated and approved management of equal to or greater than one acre and (C) The Director determines that agency under section 208 of the CWA less than five acres. Sites disturbing less storm water controls are needed for the that discharges to waters of the United than one acre are included if they are discharge based on: States; part of a larger common plan of (1) Wasteload allocations that are part * * * * * development or sale with a planned of ‘‘total maximum daily loads’’ (14) For the categories of industries disturbance of equal to or greater than (TMDLs) that address the pollutants of identified in this section, the term one and less than five acres. The NPDES concern; or includes, but is not limited to, storm permitting authority may waive the (2) A comprehensive watershed plan, water discharges from industrial plant otherwise applicable requirements for a implemented for the waterbody, that yards; immediate access roads and rail storm water discharge from construction includes the equivalents of TMDLs, and lines used or traveled by carriers of raw activities that disturb less than five addresses the pollutants of concern; or materials, manufactured products, waste acres where: (D) The Director determines that the material, or by-products used or created (1) The rainfall erosivity factor (‘‘R’’ in discharge contributes to a violation of a by the facility; material handling sites; the Revised Universal Soil Loss water quality standard or is a significant refuse sites; sites used for the Equation) is less than two during the contributor of pollutants to waters of the application or disposal of process waste period of construction activity. The United States. waters (as defined at 40 CFR part 401); owner/operator must certify that (ii) Owners or operators of municipal sites used for the storage and construction activity will take place separate storm sewer systems maintenance of material handling during the period when the rainfall designated pursuant to paragraphs equipment; sites used for residual erosivity factor is less than two; 1636 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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

EXHIBIT 1 TO § 122.26(b)(15).ÐSUMMARY OF COVERAGE OF ``STORM WATER DISCHARGES ASSOCIATED WITH OTHER ACTIVITY''* UNDER THE NPDES STORM WATER PROGRAM [*See definition in § 122.26(b)(15)]

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

(16) Small municipal separate storm activity subject to this section shall associated with other activity solely sewer system means all municipal provide: under paragraph (b)(15)(i) of this separate storm sewer systems that are * * * * * section, is exempt from the not designated as ‘‘large’’ or ‘‘medium’’ (C) A certification that all outfalls that requirements of § 122.21(g) and municipal separate storm sewer systems should contain storm water discharges paragraph (c)(1)(i) of this section. * * * pursuant to paragraphs (b)(4) and (b)(7) associated with industrial or other * * * * * of this section; or designated under activity have been tested or evaluated (e) * * * paragraph (a)(1)(v) of this section. for the presence of non-storm water (1) * * * (ii) For any storm water discharge * * * * * discharges which are not covered by a NPDES permit; tests for such non-storm associated with industrial activity from (c) Application requirements for storm water discharges may include smoke a facility that is owned or operated by water discharges associated with tests, fluorometric dye tests, analysis of a municipality with a population of less industrial activity or storm water accurate schematics, as well as other than 100,000 that is not authorized by discharges associated with other appropriate tests. * * * a general or individual permit, the activity— permit application must be submitted to * * * * * (1) Individual application. the Director by August 7, 2001. (E) Quantitative data based on (iii) For any storm water discharge Dischargers of storm water associated samples collected during storm events associated with other activity identified with industrial or other activity are and collected in accordance with in paragraph (b)(15) of this section that required to apply for an individual § 122.21 from all outfalls containing a is not authorized by a general or permit, apply for a permit through a storm water discharge associated with individual permit, the permit group application, or seek coverage industrial or other activity for the application made under paragraph (c) of under a promulgated storm water following parameters: this section must be submitted to the general permit. * ** * * * * * Director by {insert date 3 years and 90 (i) Except as provided in (ii) The operator of an existing or new days from date of publication of final § 122.26(c)(1)(ii) through (c)(1)(iv), the storm water discharge that is associated rule in the Federal Register}. operator of a storm water discharge with industrial activity solely under * * * * * associated with industrial or other paragraph (b)(14)(x) of this section or is (f) * * * Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1637

(4) Any person may petition the (iv) Sign and certify the certification (b) Storm water runoff continues to Director for the designation of a large, in accordance with § 122.22. harm the nation’s waters. Runoff from medium, or small municipal separate (2) If there is a change in lands modified by human activities can sewer system as defined by paragraphs circumstances which causes exposure of harm surface water resources in two (b)(4)(iv), (b)(7)(iv), or (b)(16) of this industrial activities or materials to ways: by changing natural hydrologic section. storm water, the owner or operator must patterns and by elevating pollutant (5) The Director shall make a final comply immediately with all the concentrations and loadings. Storm determination on any petition received requirements of the storm water water runoff may contain or mobilize under this section within 90 days after program including applying for and high levels of contaminants, such as receiving the petition with the obtaining coverage under an NPDES sediment, suspended solids, nutrients, exception of petitions to designate a permit. heavy metals, pathogens, toxins, small municipal separate storm sewer (3) Even if an owner or operator oxygen-demanding substances, and system in which case the Director shall certifies to no exposure under paragraph floatables. make a final determination on the (g)(1) of this section, the NPDES (c) EPA strongly encourages petition within 180 days after its permitting authority still retains the partnerships and the watershed receipt. authority to require the owner or approach as the management framework (g) Conditional exemption for ‘‘no operator of a facility to apply for an for efficiently, effectively, and exposure’’ of industrial activities and individual or general permit if the consistently protecting and restoring materials to storm water. Discharges permitting authority has determined aquatic ecosystems and protecting composed entirely of storm water do not that the discharge: public health. (i) Is, or may reasonably be, causing require an NPDES permit if the owner Tribal Role for the CWA Section or contributing to the violation of a or operator of the facility satisfies the 402(p)(6) Storm Water Program conditions of this paragraph concerning water quality standard; or ‘‘no exposure.’’ For purposes of this (ii) Is, or may reasonably be, § 122.31 As a Tribe, what is my role under section, ‘‘no exposure’’ means all interfering with the attainment or the CWA section 402(p)(6) storm water program? industrial materials or activities are maintenance of water quality standards, protected by a storm resistant shelter so including designated uses. As a Tribe you may: 3. Revise § 122.28(b)(2)(v) to read as (a) Be authorized to operate the that they are not exposed to rain, snow, follows: NPDES program including the storm snowmelt, or runoff. Industrial materials water program, after EPA determines or activities include, but are not limited § 122.28 General permits (applicable to that you are eligible for treatment in the to, material handling equipment, State NPDES programs, see § 123.25). same manner as a State under §§ 123.31 industrial machinery, raw materials, * * * * * through 123.34 of this chapter. (If you intermediate products, by-products, or (b) * * * do not have an authorized NPDES waste products, however packaged. This (2) * * * program, EPA generally will implement exemption does not apply to storm (v) Discharges other than discharges the program on your reservation as well from publicly owned treatment works, water discharges from facilities as other Indian country.); identified in paragraphs (b)(14)(x) and combined sewer overflows, municipal (b) Be classified as an owner or (b)(15)(i) of this section and sources separate storm sewer systems, primary operator of a regulated small municipal individually designated under industrial facilities, and storm water separate storm sewer system, as defined paragraphs (a)(1)(v), (a)(9)(i)(B),(C)&(D) discharges associated with industrial in § 122.32, to the extent the population and (g)(3) of this section. Actions taken activity, may, at the discretion of the within the urbanized area of the to qualify for this provision shall not Director, be authorized to discharge reservation is greater than or equal to interfere with the attainment or under a general permit without 1,000 persons. (Designation of your maintenance of water quality standards, submitting a notice of intent where the Tribe as an owner or operator of a small including designated uses. To establish Director finds that a notice of intent municipal separate storm sewer system that the facility meets the definition of requirement would be inappropriate. for purposes of this part is an approach no exposure described in this * * * * * that is consistent with EPA’s 1984 paragraph, an owner or operator must 4. Add undesignated centerheadings Indian Policy of operating on a submit a written certification to the and §§ 122.30 through 122.37 to subpart government-to-government basis with NPDES permitting authority once every B to read as follows: EPA looking to Tribes as the lead five years. General Purpose of the CWA Section governmental authorities to address (1) Any owner or operator claiming 402(p)(6) Storm Water Program environmental issues on their the no exposure exemption must: reservations as appropriate. If you (i) Notify the NPDES permitting § 122.30 What is the purpose of the CWA operate a separate storm sewer system authority at the beginning of each section 402(p)(6) storm water regulations? that meets the definition of a regulated permit term or prior to commencing (a) Under the statutory mandate in small municipal separate storm sewer discharges during a permit term; section 402(p)(6) of the Clean Water Act, system, your reservation would be (ii) Allow the permitting authority, or the purpose of this portion of the storm subject to the requirements under the municipality where the facility water program is to designate additional §§ 122.33 through 122.35. If you are not discharges into a municipal separate sources that need to be regulated to designated as a regulated small storm sewer system, to inspect the protect water quality and to establish a municipal separate storm sewer system, facility and allow the permitting comprehensive storm water program to you may ask EPA to designate you as authority or the municipality to make regulate these sources. (Since the storm such for the purposes of this part. Being such inspection reports publicly water program is part of the National regulated as a small municipal separate available upon request; Pollutant Discharge Elimination System storm sewer system and having coverage (iii) Upon request, also submit a copy (NPDES) Program, you should also refer under an NPDES permit may benefit of the certification to the municipality to § 122.1 which addresses the broader you by enhancing your ability to in which the facility is located; and purpose of the NPDES program.) establish and enforce certain 1638 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules requirements for facilities that discharge activity under §§ 122.26(b)(14) or unless you are authorized to administer storm water into your separate storm (b)(15), in which case you must meet the the NPDES program. sewer system.); or applicable requirements. Within Indian (c) Be a discharger of storm water country, the NPDES permitting Municipal Role for the CWA Section associated with industrial or other authority generally would be EPA, 402(p)(6) Storm Water Program

EXHIBIT 1 TO SUBPART B.ÐSUMMARY OF COVERAGE OF SMALL MUNICIPAL SEPARATE STORM SEWER SYSTEMS* UNDER THE NPDES STORM WATER PROGRAM [*See definition at § 122.26(b)(16)]

Who is Designated/Covered Under This Part?

Automatic Designation Required Nationwide Coverage ...... All owners or operators of small municipal separate storm sewer systems (MS4s) located with- in an ``urbanized area.'' (see § 122.32(a)(1)). Potential Designation: Required Evaluation by the Permitting Au- All owners or operators of small MS4s located outside of an ``urbanized area'' with a popu- thority for Coverage. lation of at least 10,000 and a population density of at least 1,000. (see §§ 122.32(a)(2) and 123.35(b)(2)). All owners or operators of small MS4s that contribute substantially to the storm water pollutant loadings of a physically interconnected MS4 that is regulated by the NPDES storm water program. (see §§ 122.32(a)(2) and 123.35(b)(4)). Potential Designation: Optional Evaluation by the Permitting Au- Owners and operators of small MS4s located outside of an ``urbanized area'' with a population thority for Coverage. of less than 10,000 or a density of less than 1,000. (see §§ 122.32(a)(2) and 123.35(b)(3)).

Who is Eligible for a Waiver or an Exemption From the Small MS4 Permit Requirements?

Potential Waiver: Locally-Based Waiver from Requirements Owners or operators of small MS4s, located within an ``urbanized area,'' with a jurisdiction of as Determined by the Permitting Author- less than 1,000 persons and a system that is not contributing substantially to the pollutant ity. loadings of a physically interconnected MS4 may certify that storm water controls are not needed based on: (1) Waste load allocations that are part of ``total maximum daily loads'' (TMDLs) that address the pollutants of concern; or (2) A comprehensive watershed plan, implemented for the waterbody, that includes the equivalents of TMDLs, and addresses the pollutants of concern. Exemption: Not Defined as a Regulated Small MS4 ..... Federal Indian reservations where the population within the ``urbanized area'' portion of the reservation is less than 1,000 persons.

§ 122.32 As an owner or operator of a where the population within the permitting authority if circumstances small municipal separate storm sewer urbanized area of the reservation is change. (See also § 123.35(b) of this system, am I regulated under the CWA under 1,000 persons; chapter.) section 402(p)(6) municipal storm water (2) An incorporated place, county, or program? other place under the jurisdiction of a § 122.33 If I am an owner or operator of a regulated small municipal separate storm (a) You are a regulated small governmental entity other than those municipal separate storm sewer system sewer system, must I apply for an NPDES described in paragraph (a)(1) of this permit? If so, by when do I have to seek if you are the owner or operator of a section that is designated by the NPDES coverage under an NPDES permit? If so, small municipal separate storm sewer permitting authority, including where who is my NPDES permitting authority? system, including but not limited to the designation is pursuant to (a) If you are the owner or operator of systems owned or operated by local §§ 123.35(b)(2) and (b)(4) of this chapter, a regulated small municipal separate governments, State departments of or is based upon a petition under storm sewer system under § 122.32, you transportation, and State, Tribal, and § 122.26(f). Federal facilities; and you meet the (b) You may be the subject of a must seek coverage under a general or following definition. Regulated small petition, by any person, to the NPDES individual NPDES permit, unless municipal separate storm sewer systems permitting authority to require an waived under paragraph (b) of this are defined as all small municipal NPDES permit for a discharge which is section, as follows: separate storm sewer systems that are composed entirely of storm water which (1) If you are seeking coverage under located in: contributes to a violation of a water a general permit, you must submit a (1) An incorporated place, county quality standard or is a significant Notice of Intent (NOI). The general (only the portion located in an contributor of pollutants to waters of the permit will explain the steps necessary urbanized area), or other place under United States. Upon a final to attain coverage. the jurisdiction of a governmental determination by the NPDES permitting (2) If you are seeking coverage under entity, including but not limited to authority, you would be required to an individual permit, you must submit Tribal or Territorial governments, comply with §§ 122.33 through 122.35. an individual application to your located in an urbanized area as (c) If you receive a waiver under NPDES permitting authority that determined by the latest Decennial § 122.33(b), you may subsequently be includes the information required under Census by the Bureau of the Census, designated back into the municipal § 122.21(f) and the following except for Federal Indian reservations storm water program by the NPDES information: Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1639

(i) Estimate of square mileage served (1) Designated under § 122.32(a)(1), educational materials to the community by your separate storm sewer system, you must apply for coverage under an or conduct equivalent outreach and NPDES permit, or apply for a activities about the impacts of storm (ii) Any additional information that modification of an existing NPDES water discharges on water bodies and your NPDES permitting authority permit under paragraph (a)(3) of this the steps that can be taken to reduce requests. section, by {insert date 3 years and 90 storm water pollution. (You may use (3) If there is an adjoining days from date of publication of final storm water educational materials municipality or other governmental rule}. provided by your State, Tribe, EPA, or, entity with an issued NPDES storm (2) Designated under § 122.32(a)(2), subject to the approval of the local water permit that is willing to have you you must apply for coverage under an government, environmental or other participate in its storm water program, NPDES permit, or apply for a public interest or trade organizations. you may jointly with that adjoining modification of an existing NPDES The materials or outreach programs municipality or other governmental permit under paragraph (a)(3) of this should inform individuals and entity seek a permit modification to section, within 60 days of notice, unless households about the steps they can include your municipality or other the NPDES permitting authority grants a take, such as ensuring proper septic governmental entity in the relevant later date. system maintenance, limiting the use portions of that NPDES permit. If you (d) If you are located in an NPDES and runoff of garden chemicals, choose this option you will need to authorized State, Tribe, or Territory, becoming involved in local stream comply with the permit application then that State, Tribe, or Territory is restoration activities that are requirements of § 122.26, in lieu of the your NPDES permitting authority. coordinated by youth service and requirements of § 122.34. You do not Otherwise, your NPDES permitting conservation corps and other citizen need to comply with the specific authority is the EPA Regional Office. groups, and participating in storm drain application requirements of (You should call your EPA Regional stenciling, to reduce storm water § 122.26(d)(1)(iii) and (iv) and (d)(2)(iii) Office to find out who your NPDES pollution. In addition, some of the (discharge characterization). You may permitting authority is.) materials or outreach programs should satisfy the requirements in § 122.26 § 122.34 As an owner or operator of a be directed toward targeted groups of (d)(1)(v) and (d)(2)(iv) (identifying a regulated small municipal separate storm commercial, industrial, and institutional management plan) by referring to the sewer system, what will my NPDES entities likely to have significant storm adjoining municipality’s storm water municipal storm water permit require? water impacts. For example, management plan. (In referencing an (a) Your NPDES municipal storm information to restaurants on the impact adjoining municipality’s storm water water permit will, at a minimum, of grease clogging storm drains and to management plan, you should briefly require you to develop, implement, and garages on the impact of oil discharges. describe how the existing plan will enforce a storm water management You are encouraged to tailor your address discharges from your municipal program designed to reduce the outreach program to address the separate storm sewer system or would discharge of pollutants from your viewpoints and concerns of all need to be supplemented in order to municipal separate storm sewer system communities, particularly minority and adequately address your discharges, to the maximum extent practicable disadvantaged communities, as well as explain the role you will play in (MEP) and protect water quality. Your children.) coordinating storm water activities in storm water management program must (2) Public involvement/participation. your jurisdiction, and detail the include the minimum control measures You must comply with State, Tribal and resources available to you to accomplish described in paragraph (b) of this local public notice requirements. (You the plan.) section. For purposes of this section, should include the public in (b) The NPDES permitting authority narrative effluent limitations requiring developing, implementing, and may waive the requirements otherwise implementation of best management reviewing your storm water applicable to you if you are an owner or practices (BMPs), are generally the most management program. The public operator of a regulated small municipal appropriate form of effluent limitations participation process should make separate storm sewer system, as defined when designed to satisfy technology efforts to reach out and engage all in § 122.32(a)(1), the jurisdiction served requirements, including reductions of economic and ethnic groups. You may by your system includes a population of pollutants to the maximum extent consider impanelling a group of citizens less than 1,000 ersons, your system is practicable, and water quality-based to participate in your decision-making not contributing substantially to the requirements of the Clean Water Act. process, hold public hearings, or work storm water pollutant loadings of a Implementation of the best management with volunteers.) physically interconnected regulated practices consistent with the provisions (3) Illicit discharge detection and municipal separate storm sewer system of the storm water management program elimination. You must: (see § 123.35(b)(4) of this chapter), and required pursuant to this section and (i) Develop, if not already completed, you have certified that storm water the provisions of the permit required a storm sewer system map, or controls are not needed based on: pursuant to § 122.33 will constitute equivalent, showing the location of (1) Wasteload allocations that are part compliance with the standard of major pipes, outfalls, and topography. In of ‘‘total maximum daily loads’’ ‘‘reducing pollutants to the maximum addition, if data already exist, show (TMDLs) that address the pollutants of extent practicable.’’ Your NPDES areas of concentrated activities likely to concern; or permitting authority will specify a time be a source of storm water pollution; (2) A comprehensive watershed plan, period of up to 5 years from the date of (ii) To the extent allowable under implemented for the waterbody, that permit issuance for you to develop and State or Tribal law, effectively prohibit, includes the equivalents of TMDLs, and implement your program. through ordinance, order, or similar addresses the pollutants of concern. (b) Minimum control measures. (1) means, illicit discharges into your storm (c) If you are an owner or operator of Public education and outreach on storm sewer system and implement a regulated small municipal separate water impacts. You must implement a appropriate enforcement procedures storm sewer system: public education program to distribute and actions; 1640 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

(iii) Implement a plan to detect and other words, post-development waste removed from the separate storm address illicit discharges, including conditions should not be different from sewer systems and areas listed above illegal dumping, to your system; and pre-development conditions in a way (such as dredge spoil, accumulated (iv) Inform public employees, that adversely affects water quality. The sediments, floatables, and other debris); businesses, and the general public of municipal program should include and ways to ensure that new flood hazards associated with illegal structural and/or non-structural BMPs. management projects assess the impacts discharges and improper disposal of EPA encourages locally-based on water quality and examine existing waste. (Actions may include storm drain watershed planning and the use of projects for incorporating additional stenciling, a program to promote, preventative measures, including non- water quality protection devices or publicize, and facilitate public reporting structural BMPs, which are generally practices. In general, the requirement to of illicit connections or discharges, and lower in cost than structural BMPs, to develop and implement an operation distribution of outreach materials.) minimize water quality impacts. Non- and maintenance program, including (4) Construction site storm water structural BMPs are preventative actions local government employee training, is runoff control. You must develop, that involve management and source meant to ensure that municipal implement, and enforce a program to controls. Examples of non-structural activities are performed in the most reduce pollutants in storm water runoff BMPs include policies and ordinances appropriate way to minimize to your municipal separate storm sewer that result in protection of natural contamination of storm water system from construction activities that resources and prevention of runoff. discharges, rather than requiring the result in land disturbance of greater These include requirements to limit municipality to undertake new than or equal to one acre. You must use growth to identified areas, protect activities.) an ordinance or other regulatory sensitive areas such as wetlands and (c) The NPDES permitting authority mechanism that controls erosion and riparian areas, minimize may include permit provisions in your sediment to the maximum extent imperviousness, maintain open space, NPDES permit that incorporate by practicable and allowable under State or and minimize disturbance of soils and reference qualifying local, State or Tribal law. Your program must control vegetation. Examples of structural BMPs Tribal municipal storm water other waste at the construction site that include storage practices (wet ponds management program requirements that may adversely impact water quality, and extended-detention outlet address one or more of the minimum such as discarded building materials, structures), filtration practices (grassed controls of § 122.34(b). Qualifying local, concrete truck washout, and sanitary swales, sand filters and filter strips), and State or Tribal program requirements waste. Your program also must include, infiltration practices (infiltration basins, must impose, at a minimum, the at a minimum, requirements for infiltration trenches, and porous relevant requirements of paragraph (b) construction site owners or operators to pavement). Storm water technologies of this section. implement appropriate BMPs, (d) You must identify and submit to are constantly being improved, and EPA provisions for pre-construction review your NPDES permitting authority either recommends that municipal of site management plans, procedures in your notice of intent or in your requirements be responsive to these for receipt and consideration of permit application (see § 122.33) the changes.) information submitted by the public, following information: best management regular inspections during construction, (6) Pollution prevention/good practices (BMPs) to be implemented and and penalties to ensure compliance. housekeeping for municipal operations. the measurable goals for each of the (See § 122.44(s)) You must develop and implement a storm water minimum control measures (5) Post-construction storm water cost-effective operation and at paragraphs (b)(1) through (b)(6) of this management in new development and maintenance program with the ultimate section, the month and year in which redevelopment. You must develop, goal of preventing or reducing pollutant you will start and aim to complete each implement, and enforce a program to runoff from municipal operations. Using of the measures or indicate the address storm water runoff from new training materials that are available from frequency of the action, and the person development and redevelopment EPA, your State, or Tribe, or from other or persons responsible for implementing projects that result in land disturbance organizations whose materials are or coordinating your storm water of greater than or equal to one acre and approved by the local government, your management program. Measurable goals that discharge into your municipal program must include local government to satisfy minimum control measures in separate storm sewer system. Your employee training to prevent and reduce paragraphs (b)(3) through (b)(6) of this program must include a plan to storm water pollution from government section identified in a notice of intent implement site-appropriate and cost- operations, such as park and open space will not constitute a condition of the effective structural and non-structural maintenance, fleet maintenance, permit, unless EPA or your State or best management practices (BMPs) and planning, building oversight, and storm Tribe has provided or issued a menu of ensure adequate long-term operation water system maintenance. (EPA regionally appropriate and field-tested and maintenance of such BMPs. Your recommends that, at a minimum, you BMPs that EPA or your State or Tribe program must ensure that controls are in consider the following in developing believes to be cost-effective. (EPA will place that would prevent or minimize your program: maintenance activities, provide guidance on developing BMPs water quality impacts. (If the involved maintenance schedules, and long-term and measurable goals and modify, parties consider water quality impacts inspection procedures for structural and update, and supplement such guidance from the beginning stages of projects, other storm water controls to reduce based on the assessments of the NPDES new development and potentially floatables and other pollutants municipal storm water program and redevelopment allow opportunities for discharged from your separate storm research conducted by (date 13 years water quality sensitive projects. EPA sewers; controls for reducing or from effective date of final rule). recommends that municipalities eliminating the discharge of pollutants (e) You must comply with other establish requirements for the use of from streets, roads, highways, municipal applicable NPDES permit requirements, cost-effective BMPs that minimize water parking lots, maintenance and storage standards and conditions established in quality impacts and attempt to maintain yards, and waste transfer stations; the individual or general permit, pre-development runoff conditions. In procedures for properly disposing of developed consistent with the Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1641 provisions of §§ 122.41 through 122.49, requested, and the other entity has Federal Register} and make any as appropriate. agreed to accept responsibility for necessary revisions. (EPA will conduct (f) Evaluation and assessment. (1) implementation of the control measure an enhanced research effort and compile Evaluation. You must evaluate program on your behalf to satisfy your permit a comprehensive evaluation of the compliance, the appropriateness of your obligation. You must note in your NPDES municipal storm water program. identified best management practices, § 122.34(f)(3) reports when you are EPA strongly recommends that no and progress towards achieving your relying on another entity to satisfy your additional requirements beyond the identified measurable goals. (The permit obligations. You remain minimum control measures be imposed NPDES permitting authority may responsible for compliance with your on regulated small municipal separate determine monitoring requirements for permit obligations if the other entity storm sewer systems without the you in accordance with State/Tribal fails to implement the control measure agreement of the owner or operator of monitoring plans appropriate to your (or component thereof). Therefore, EPA the affected municipal separate storm watershed. Participation in a group encourages you to enter into a legally sewer system, except where adequate monitoring program is encouraged.) binding agreement with that entity if information exists in approved TMDLs (2) Record keeping. You must keep you want to minimize any uncertainty or equivalents of TMDLs to develop records required by the NPDES permit about compliance with your permit. more specific measures to protect water for at least 3 years. You must submit (b) Where appropriate, the NPDES quality, or until EPA’s comprehensive your records to the NPDES permitting permitting authority may recognize evaluation is completed. EPA will authority only when specifically asked existing responsibilities among evaluate the regulations based on data to do so. You must make your records, governmental entities for the minimum from the NPDES municipal storm water including your storm water management control measures in your NPDES permit. program, from research on receiving program, available to the public at (For example, a State or Tribe may be water impacts from storm water, and the reasonable times during regular responsible for addressing construction effectiveness of best management business hours (see § 122.7 for site runoff and municipalities may be practices (BMPs).) confidentiality provision). (You may responsible for the remaining minimum 5. Add § 122.44(s) to read as follows: assess a reasonable charge for copying. control measures. You are not required to provide notice to the other § 122.44 Establishing limitations, You may require a member of the public standards, and other permit conditions to provide advance notice, not to exceed governmental entity when your NPDES (applicable to State NPDES programs, see two working days.) permit recognizes the entity and its § 123.25) existing responsibilities.) Where the (3) Reporting. You must submit * * * * * annual reports to the NPDES permitting permitting authority recognizes an (s)(1) For storm water discharges from authority for your first permit term. For existing responsibility for one or more construction sites identified in subsequent permit terms, you must of the minimum control measures in § 122.26(b)(15)(i), the Director may submit reports in year two and four your permit, your responsibility to include permit provisions that unless the NPDES permitting authority include such minimum control incorporate by reference qualifying requires more frequent reports. Your measure, or measures, in your storm State, Tribal, or local sediment and report must include: water management program is waived erosion control program requirements. (i) The status of compliance with so long as the other governmental entity A qualifying State, Tribal, or local permit conditions, an assessment of the implements the measure consistent with sediment and erosion control program is appropriateness of your identified best the requirements of § 122.34(b). one that meets the requirements of a management practices and progress § 122.36 As an owner or operator of a municipal NPDES separate storm sewer towards achieving your identified regulated small municipal separate storm permit or a program otherwise approved measurable goals for each of the sewer system, what happens if I don't by the Director. For the Director to minimum control measures; comply with the application or permit approve such programs, the program (ii) Results of information collected requirements in §§ 122.33 through 122.35? must meet the minimum program and analyzed, including monitoring NPDES permits are federally requirements established under data, if any, during the reporting period; enforceable. Violators may be subject to § 122.34(b)(4). (iii) A summary of the storm water the enforcement actions and penalties (2) For storm water discharges activities you plan to undertake during described in Clean Water Act sections identified in § 122.26(b)(14)(x), the the next reporting cycle; and 309 (b), (c), and (g) and 505, or under Director may include by reference State, (iv) A change in any identified applicable State or local law. Tribal or local requirements that meet measurable goals that apply to the Compliance with a permit issued the standard of ‘‘best available program elements. pursuant to section 402 of the Clean technology’’ (BAT) as defined, for Water Act would be deemed example, in the storm water general § 122.35 As an owner or operator of a compliance, for purposes of sections permit. regulated small municipal separate storm 309 and 505, with sections 301, 302, sewer system, what if another 306, 307, and 403, except any standard PART 123ÐSTATE PROGRAM governmental or other entity is already REQUIREMENTS implementing a minimum control measure imposed under section 307 for toxic in my jurisdiction? pollutants injurious to human health. 1. The authority citation for part 123 (a) You may rely on another entity to § 122.37 Will the municipal storm water continues to read as follows: satisfy your NPDES permit obligations program regulations at §§ 122.32 through Authority: The Clean Water Act, 33 U.S.C. to implement a minimum control 122.36 and § 123.35 of this chapter change 1251 et seq. measure if: the other entity is in the future? 2. Section 123.25 is amended by implementing the control measure; the EPA will evaluate the municipal adding paragraphs (a)(39) through particular control measure, or storm water regulations at §§ 122.32 (a)(46) to read as follows: component thereof, is at least as through 122.36 and § 123.35 of this stringent as the corresponding NPDES chapter after {insert date 13 years from § 123.25 Requirements for permitting. permit requirement; and you have date of publication of final rule in the (a) * * * 1642 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

(39) § 122.30 (What is the purpose of 402(p)(6) program. This process must (d) You must issue permits consistent the CWA section 402(p)(6) storm water include the authority to designate a with §§ 122.32 through 122.35 of this regulations?); small municipal separate storm sewer chapter to all regulated small municipal (40) § 122.31 (For Indian Tribes only) system waived under paragraph (d) of separate storm sewer systems. You may (As a Tribe, what is my role under the this section if circumstances change. waive the requirements otherwise CWA section 402(p)(6) storm water EPA may make designations under this applicable to regulated small municipal program?) section if a State or Tribe fails to comply separate storm sewer systems, as (41) § 122.32 (As an owner or operator with the requirements listed in this defined in § 122.32(a)(1) of this chapter, of a small municipal separate storm paragraph. In making your designations, if the jurisdiction of the regulated small sewer system, am I regulated under the you must: municipal separate storm sewer system CWA section 402(p)(6) municipal storm (1) Develop criteria to evaluate includes a population of less than 1,000 water program?); whether a storm water discharge results persons, its discharges are not (42) § 122.33 (If I am an owner or in or has the potential to result in contributing substantially to the storm operator of a regulated small municipal exceedances of water quality standards, water pollutant loadings of a physically separate storm sewer system, must I including impairment of designated interconnected regulated municipal apply for an NPDES permit? If so, by uses, or other significant water quality separate storm sewer system (see when do I have to seek coverage under impacts, including habitat and paragraph (b)(4) of this section), and the an NPDES permit? If so, who is my biological impacts. (EPA recommends as owner or operator of the regulated small NPDES permitting authority?); guidance for determining other municipal separate storm sewer system (43) § 122.34 (As an owner or operator significant water quality impacts a has certified that storm water controls of a regulated small municipal separate balanced consideration of the following are not needed based on: storm sewer system, what will my designation criteria on a watershed or (1) Wasteload allocations that are part NPDES municipal storm water permit other local basis: discharge to sensitive of ‘‘total maximum daily loads’’ require?); waters, high growth or growth potential, (TMDLs) that address the pollutants of (44) § 122.35 (As an owner or operator high population density, contiguity to concern; or of a regulated small municipal separate an urbanized area, significant (2) A comprehensive watershed plan, storm sewer system, what if another contributor of pollutants to waters of the implemented for the waterbody, that governmental or other entity is already United States, and ineffective control of includes the equivalents of TMDLs, and implementing a minimum control water quality concerns by other addresses the pollutants of concern. measure in my jurisdiction?); programs.); (e) You must specify a time period of (45) § 122.36 (As an owner or operator (2) Apply such criteria, at a minimum, up to 5 years from the date of permit of a regulated small municipal separate to any incorporated place, county, or issuance for owners or operators of storm sewer system, what happens if I other place under the jurisdiction of a small municipal separate storm sewer don’t comply with the application or governmental entity located outside of systems to fully develop and implement permit requirements in §§ 122.33 an urbanized area that has a population their storm water program. through 122.35?); density of at least 1,000 people per (f) You must include the requirements (46) § 122.37 (Will the municipal square mile and a population of at least in § 122.34 of this chapter including as storm water program regulations at §§ 10,000; modified in accordance with 122.32 through 122.36 and § 123.35 of (3) Designate any incorporated place, §§ 122.33(a)(3), 122.34(c), or 122.35(b) this chapter change in the future?); county or other place under the of this chapter, in any permit issued for jurisdiction of a governmental entity regulated small municipal separate * * * * * storm sewer systems. (You may include 3. Add an undesignated that meets the selected criteria by {insert date three years and 90 days permit provisions in a regulated small centerheading and § 123.35 to subpart B from date of publication of final rule in municipal separate storm sewer system to read as follows: } NPDES permit that incorporates by NPDES Permitting Authority Role for the FEDERAL REGISTER . You may { reference qualifying local, State or the CWA section 402(p)(6) Municipal have until insert date five years from Tribal municipal storm water Program date of publication of final rule in the FEDERAL REGISTER} to apply the management program requirements that § 123.35 As the NPDES Permitting designation criteria on a watershed basis address one or more of the minimum Authority for regulated small municipal where there is a comprehensive controls of § 122.34(b) of this chapter separate storm sewer systems, what is my watershed plan. You may apply these (see § 122.34(c) of this chapter). role? criteria to make additional designations Qualifying local, State or Tribal program (a) You must comply with the at any time, as appropriate; and requirements must impose, at a requirements for all NPDES permitting (4) Designate any incorporated place, minimum, the relevant requirements of authorities under parts 122, 123, 124, county, or other place under the § 122.34(b) of this chapter.) and 125 of this chapter. (This section is jurisdiction of a governmental entity (g) If you plan to issue a general meant only to supplement those that contributes substantially to the permit to authorize storm water requirements and discuss specific issues storm water pollutant loadings of a discharges from small municipal related to the small municipal storm physically interconnected municipal separate storm sewer systems, you must water program.) separate storm sewer system that is provide or issue by {insert 2 years from (b) You must develop a process, as regulated by the NPDES storm water date of publication of final rule in the well as criteria, to designate program. Federal Register} a menu of regionally incorporated places, counties, or other (c) You must make a final appropriate and field-tested BMPs that places under the jurisdiction of a determination within 180 days from you believe to be cost-effective from governmental entity, other than those receiving a petition under § 122.32(b) of which regulated small municipal described in § 122.32(a)(1) of this this chapter (or analogous State or separate storm sewer systems can select. chapter, as regulated small municipal Tribal law). If a State or Tribe fails to do Failure to issue the menu of BMPs separate storm sewer systems to be so, EPA may make a determination on would not affect the legal status of the covered under the CWA section the petition. general permit. If a State or Tribe fails Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1643 to provide or issue the menu, EPA may financial assistance to owners and (5) Where appropriate, you may do so. operators of regulated small municipal recognize existing responsibilities (h) You must incorporate additional separate storm sewer systems; among governmental entities for the measures necessary to ensure effective (3) You should support local control measures in an NPDES small implementation of your State storm programs by providing technical and municipal storm water permit (see water program for regulated small programmatic assistance, conducting § 122.35(b) of this chapter); and municipal separate storm sewer research projects, performing watershed systems. (EPA recommends (6) You are encouraged to use a brief monitoring, and providing adequate consideration of the following: (e.g., two page) reporting format to (1) You are encouraged to use a legal authority at the local level; facilitate compiling and analyzing data general permit for regulated small (4) You are encouraged to coordinate from submitted reports under municipal separate storm sewer and utilize the data collected under § 122.34(f)(3) of this chapter. EPA will systems; several programs including water develop a model form for this purpose.) (2) To the extent that there is a quality management programs, TMDL [FR Doc. 98–180 Filed 1–8–98; 8:45 am] dedicated funding source, you should programs, and water quality monitoring play an active role in providing programs; BILLING CODE 6560±50±P