[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)] [Proposed Rules] [Pages 1536-1643] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-180] [[Page 1535]] _______________________________________________________________________ Part II Environmental Protection Agency _______________________________________________________________________ 40 CFR Parts 122 and 123 National Pollutant Discharge Elimination System--Proposed Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges; Proposed Rule Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules [[Page 1536]] ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 122 and 123 [No. W-97-12 (Proposed Rule) and No. W-97-15 (Information Collection Request); FRL-5937-8] RIN 2040-AC82 National Pollutant Discharge Elimination System--Proposed Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The National Pollutant Discharge Elimination System (NPDES) existing storm water program (Phase I) is resulting in significant improvement of surface water quality in the United States by reducing polluted runoff from a large number of priority sources, including major industrial facilities, large and medium city storm sewers (``municipal separate storm sewer systems'' or ``MS4s''), as well as construction sites that disturb 5 or more acres. Today's proposed NPDES storm water regulations (Phase II), which will be finalized by March 1, 1999, would expand this existing national program to smaller municipalities and construction sites that disturb 1 to 5 acres. In this expansion, EPA is proposing ``safety valves'' which would allow certain sources to be excluded from the national program based on the lack of impact on water quality, as well as to pull in other sources not regulated on a national basis based on localized adverse impact on water quality. Finally, EPA is proposing to conditionally exclude from the NPDES storm water program, industrial facilities that have ``no exposure'' of industrial activities to storm water, thereby reducing application of the program to many industrial activities currently covered by the program that have no industrial storm water discharges. This rule would establish a cost effective, flexible approach for reducing negative environmental impact by storm water discharges from these currently unregulated sources. The ``National Water Quality Inventory, 1994 Report to Congress'' indicates that storm water discharges from a variety of sources including separate storm sewers, construction, waste disposal, and resource extraction activities are major causes of water quality impairment; roughly 46 percent of the identified cases of water quality impairment of estuarine square miles surveyed, for example, are attributable to storm sewer runoff. EPA believes that the implementation of the six minimum measures, which focus on a ``best management practices'' (BMP) approach, identified for the small municipalities in this proposal should significantly reduce pollutants in urban storm water compared to existing levels in a cost effective manner. If after implementing the six minimum measures there is still a water quality problem, the municipality would expand or use better tailored BMPs in their minimum measures to result in water quality improvement. Similarly, EPA believes that implementation of BMP controls at small construction sites will also result in a significant reduction is pollutant discharges and an improvement in surface water quality. EPA believes this rule will cost significantly less than the existing 1995 rule that is currently in place, and will result in significant monetized financial, recreational and health benefits, as well as benefits that EPA has been unable to monetize, including reduced scouring and erosion of streambeds, improved aesthetic quality of waters, reduced eutrophication of aquatic systems, benefit to wildlife and endangered and threatened species, tourism benefits, biodiversity benefits and reduced siting costs of reservoirs. In addition, there will be an economic savings from the proposed ``no exposure'' streamlining. The rule would provide for a NPDES program approach that: encourages the use of general permits, provides flexibility for municipalities to determine the nature of storm water controls, provides flexibility in use of watershed approaches, is consistent with the existing storm water Phase I program, recognizes and includes existing programs, utilizes the existing NPDES program which is Federally enforceable and takes advantage of existing structures and mechanisms for public participation. EPA is inviting comment on alternative approaches that may be available to allow efficient and effective targeting of environmental problems for the Phase II program, without extension of the NPDES program to Phase II dischargers. EPA is committed to continue seeking the input of all stakeholders in the development of this proposed rule, including continuing to seek input and advice from the Phase II Subcommittee of the Urban Wet Weather Flows Federal Advisory Committee which was established in 1995. DATES: Public Comment Period for the Proposed Rule and Information Collection Request (ICR). The public comment period for this proposed rule and ICR will be from date of publication in the Federal Register until April 9, 1998. Public Meetings/Hearings. The public meetings/hearings will include a presentation on the proposed rule and allow interested parties the opportunity to provide written and/or oral comments for the official record. Public meetings/hearings will be held at the times and locations provided below. If all statements are finished before 4:00 pm the hearings may be finished early. The hearing dates are: 1. February 23, 1998, 1:00 p.m. to 4:00 p.m., Washington, DC 2. February 25, 1998, 1:00 p.m. to 4:00 p.m., Boston, Massachusetts 3. February 27, 1998, 1:00 p.m. to 4:00 p.m., Atlanta, Georgia 4. March 2, 1998, 1:00 p.m. to 4:00 p.m., Chicago, Illinois 5. March 4, 1998, 1:00 p.m. to 4:00 p.m., Dallas, Texas 6. March 6, 1998, 1:00 p.m. to 4:00 p.m., San Francisco, California ADDRESSES: Public Comments. All public comments regarding the proposed rule shall be submitted by mail to: ``ATTN: Storm Water Proposed Rule Comment Clerk--W-97-12, Water Docket, Mail Code 4101, EPA; 401 M Street, SW; Washington, DC 20460.'' All public comments regarding the proposed amendment to the ICR shall be submitted by mail to: ``ATTN: Storm Water Proposed Rule ICR Comment Clerk--W-97-15, Water Docket, Mail Code 4101, EPA; 401 M Street, SW, Washington, DC 20460'' and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, D.C. 20503, marked ``Attention: Desk Officer for EPA.'' Please submit an original and three copies of your comments and enclosures (including references). Commenters who want EPA to acknowledge receipt of their comments should enclose a self-addressed, stamped envelope. No facsimiles (faxes) will be accepted. Comments may also be submitted electronically to ow-docket@epamail.epa.gov. Electronic comments must be submitted as an ASCII file avoiding the use of special characters or forms of encryption. Electronic comments must be identified by the docket number (W-97-12 (storm water proposed rule) and W-97-15 (storm water proposed rule ICR)). Comments and data will also be accepted on disks in WordPerfect in 5.1 format or ASCII file format. Electronic comments on this notice may be filed online at many Federal Depository Libraries. [[Page 1537]] To ensure that EPA can read, understand and therefore properly respond to public comments, EPA would prefer that commenters cite, where possible, the paragraph(s) or sections in the proposed rule language, preamble or supporting documents to which the comment refers. Commenters should use a separate paragraph for each issue discussed. Public Hearings. The hearing locations are: 1. Washington, DC--Auditorium of the USEPA Education Center, 401 M St. SW, Washington, DC 20460 2. Boston--John A. Volpe National Transportation Systems Center-- Auditorium (Bldg. #2), 55 Broadway--Kendall Square, Cambridge, MA 02142 3. Atlanta--Atlanta Federal Center, (Room C, AFC Conference Center), 61 Forsyth St. SW, Atlanta, GA 30303-3104 4. Chicago--USEPA Region 5 (Rm 331) 77 W. Jackson Blvd., Chicago, IL 60604-3590 5. Dallas--USEPA Region 6 (Regional Conference Room, 12th floor), 1445 Ross Ave., Dallas, TX 75202-2733 6. San Francisco--USEPA Region 9 (Marianas/ Palau Room, First Floor), 75 Hawthorne Street, San Francisco, CA 94105-3901 Docket. The complete administrative record for the proposed rule and the ICR have been established under docket numbers W-97-12 (proposed rule) and W-97-15 (ICR), and includes supporting documentation as well as printed, paper versions of electronic comments. Copies of information in the record are available upon request. A reasonable fee may be charged for copying. The record is available for inspection and copying from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays at the Water Docket, EPA, Room 2616, 401 M Street, SW, Washington, D.C. For access to docket materials, please call 202/260-3027 to schedule an appointment. FOR FURTHER INFORMATION CONTACT: George Utting, Office of Wastewater Management, Environmental Protection Agency, Mail Code 4203, 401 M Street, SW, Washington, DC 20460; (202) 260-5816; sw2@epamail.epa.gov. SUPPLEMENTARY INFORMATION: Entities potentially regulated by this action include: ------------------------------------------------------------------------ Examples of regulated Category entities ------------------------------------------------------------------------ Federal Government........................ Owners or operators of municipal separate storm sewer systems. Tribal Government......................... Owners or operators of a separate storm sewer system, or dischargers of storm water associated with industrial activity. State Government.......................... Owners or operators of small municipal separate storm sewer systems. Local Government.......................... Owners or operators of small municipal separate storm sewer systems (serving populations less than 100,000) and municipal construction and industrial activities. Industry.................................. Owners or operators of industrial facilities who may be dischargers of storm water associated with industrial or other activity. Construction Activity..................... Construction site owners or operators. Public.................................... Persons who may want to participate in the petition process. ------------------------------------------------------------------------ This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether you are regulated by this action, you should carefully examine the applicability criteria in Secs. 122.26(b)(15), 122.31, 122.32, and 123.35 of the proposed rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. Table of Contents I. Background A. Water Quality Concerns/Environmental Impacts 1. Studies and Assessments of Storm Water Runoff a. Urban Development b. Illicit Discharges c. Construction Site Runoff d. Improper Disposal of Materials B. Statutory Background C. EPA's Reports to Congress D. EPA Regulations for the NPDES Program for Storm Water E. EPA Outreach Efforts F. The FACA Committee Effort G. Related Nonpoint Source Programs 1. Section 319 of the Clean Water Act 2. Section 6217 of the Coastal Zone Act Reauthorization Amendments H. Watershed-based Approach for Water Quality Programs II. Description of Proposed Program A. Overview 1. Objectives EPA Seeks to Achieve in Today's Proposal 2. General Requirements for Regulated Entities Under Today's Proposal 3. Integration of Today's Proposal With the Existing Storm Water Program 4. General Permits 5. Tool Box 6. Deadlines Established in Today's Proposal B. Readable Regulations C. Program Framework 1. Today's Approach--The NPDES Program Approach 2. Alternatives Considered a. State Alternative Non-NPDES Program i. Alternative Overview ii. State-Proposed Program Criteria iii. Proposed Procedure for Approval and Periodic Review iv. Proposed Procedure for Disapproval 3. Permits Versus Non-Permits D. Federal Role 1. Develop Overall Framework of the Program 2. Encourage Use of a Watershed Approach 3. Provide Financial Assistance 4. Implement the Program for Non-NPDES Authorized States, Tribes, and Territories 5. Oversee State Programs 6. Comply with Applicable Requirements as a Discharger E. State Role 1. Develop the Program 2. Comply With Applicable Requirements as a Discharger 3. Communicate with EPA F. Tribal Role 1. Background a. EPA's Indian Policy b. Existing NPDES Regulations for Storm Water 2. Today's Proposal 3. Other Relevant Issues G. NPDES Permitting Authority's Role for the CWA section 402(p)(6) Municipal Program 1. Comply With Other Requirements 2. Designate Sources a. Develop Designation Criteria b. Apply Designation Criteria c. Designate Physically Interconnected Municipal Separate Storm Sewer Systems d. Address Public Petition for Designation 3. Provide Waivers 4. Issue Permits 5. Support and Oversee the Local Programs H. Municipal Role 1. Scope of Today's Proposal 2. Municipal Definition a. Nationwide (``Automatic'') Designation i. Urbanized Area Description ii. Urbanized Area Profiles iii. Rationale for Using Urbanized Areas b. Municipal Designation by the Permitting Authority c. Waiving the Requirements for Regulated Small Municipal Separate Storm Sewer Systems i. Combined Sewer Systems [[Page 1538]] d. Designation Alternatives Considered--Preliminary Options i. Designation Option 1 ii. Designation Option 2 iii. Designation Option 3 3. Municipal Permit Requirements a. Program Requirements--Minimum Control Measures i. Public Education and Outreach on Storm Water Impacts ii. Public Involvement/Participation iii. Illicit Discharge Detection and Elimination iv. Construction Site Storm Water Runoff Control v. Post-Construction Storm Water Management in New Development and Redevelopment vi. Pollution Prevention/Good Housekeeping for Municipal Operations vii. Satisfaction of Minimum Measure Obligations b. Application Requirements, Including Notice of Intent c. Evaluation and Assessment i. Record Keeping ii. Reporting iii. Permit-As-A-Shield d. Other Applicable NPDES Requirements e. Enforceability f. Deadlines g. Reevaluation of Rule I. Other Designated Storm Water Discharges 1. Background 2. Construction a. Scope b. Waivers c. Permit Process and Administration d. Cross-Referencing State/Local Erosion and Sediment Control Programs e. Alternative Approaches 3. Other Sources 4. Residual Designation Authority J. Conditional Exemption for ``No Exposure'' of Industrial Activities and Materials to Storm Water 1. Background 2. Definition of ``No Exposure'' 3. Options Considered K. Public Involvement/Public Role L. Water Quality Issues 1. Water Quality Standards a. Permitting Policy 2. Total Maximum Daily Loads (TMDLs) 3. Anti-backsliding 4. Monitoring III. Paperwork Reduction Act IV. Executive Order 12866 V. Unfunded Mandates Reform Act/Executive Order 12875 A. UMRA Section 202 Written Statement B. Description of Intergovernmental Consultation C. Selection of the Least Costly, Most Cost-Effective or Least Burdensome Alternative That Achieves the Objectives of the Statute D. Small Government Agency Plan VI. Executive Order 12898 VII. Regulatory Flexibility Act A. Economic Impact on Small Entities B. SBREFA Panel Process VIII. National Technology Transfer and Advancement Act Legal Authority: 33 U.S.C. 1311; 33 U.S.C. 1342; 33 U.S.C. 1361. CFR Citation: 40 CFR 122; 40 CFR 123. I. Background A. Water Quality Concerns/Environmental Impacts In 1972, Congress amended the Federal Water Pollution Control Act (referred to as the Clean Water Act (CWA)) to prohibit the discharge of any pollutant to waters of the United States from a point source unless the discharge is authorized by a National Pollutant Discharge Elimination System (NPDES) permit. The NPDES program is a permit program designed to regulate point source discharges. Initial efforts to improve water quality under the NPDES program primarily focused on reducing pollutants in industrial process wastewater and municipal sewage. This focus developed because many sources of industrial process wastewater and municipal sewage were not adequately controlled and represented immediate and pressing environmental problems. Furthermore, these discharges were easily identified as responsible for poor, often drastically degraded, water quality conditions. As pollution control measures for industrial process wastewater and municipal sewage were further developed, refined, and implemented, it became increasingly evident that more diffuse sources of water pollution were significant causes of water quality impairments. Specifically, storm water runoff draining large surface areas, such as agricultural and urban land, was found to be a major cause of adverse water quality impairment, including nonattainment of designated uses. In 1987, Congress amended the CWA to require implementation of a comprehensive approach for addressing storm water discharges under the NPDES program. Storm water discharges have a number of environmental effects that can occur from land development, illicit discharges, construction site runoff, and improper disposal of materials. The following section entitled, Studies and Assessments of Storm Water Runoff, discusses these four issues. Problems can also occur from agricultural storm water discharges and return flows from irrigated agriculture. This area of concern, however, is statutorily exempted from regulation under the NPDES program (see CWA section 502(14)). Other sources may be of concern in certain areas and can be addressed on a case-by-case (or category-by-category) basis through the NPDES permitting authority's designation authority. Storm water runoff from lands modified by human activities can harm surface water resources, and, in turn, violate water quality standards, in two ways: (1) by changing natural hydrologic patterns and (2) by elevating pollutant concentrations and loadings. Storm water runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen- demanding substances, and floatables. Such contaminants are carried to nearby streams, rivers, lakes, and estuaries. Individually and combined, these pollutants can reduce water quality and threaten one or more designated beneficial uses. Often, an increased volume of runoff or contaminants can lead to violations of applicable State water quality standards. 1. Studies and Assessments of Storm Water Runoff a. Urban Development In support of today's proposal regarding land development, the United States Environmental Protection Agency (EPA) has relied on several broad-based assessments of storm water runoff and related water quality impacts, including: (1) Nationwide Urban Runoff Program (NURP) study (U.S. Environmental Protection Agency, Office of Water 1983. Final Report of the Nationwide Urban Runoff Program Washington, D.C.), (2) America's Clean Water--The States' Nonpoint Source Assessment (Association of State and Interstate Water Pollution Control Administrators 1985. America's Clean Water--The States' Nonpoint Source Assessment. Prepared in cooperation with the U.S. Environmental Protection Agency, Office of Water, Washington, D.C.), (3) U.S. Geological Survey Urban-Storm Water Data Base for 22 Metropolitan Areas Throughout the United States (Driver, N.E., Mustard, M.H., Rhinesmith, R.B. and Middleburg, R.F. 1985. U.S. Geological Survey Urban Storm Water Data Base for 22 Metropolitan Areas Throughout the United States. U.S. Geological Survey Report No. 85-337, Lakewood, CO.), and (4) The National Water Quality Inventory, 1994 Report to Congress (U.S. Environmental Protection Agency, Office of Water 1995. National Water Quality Inventory: 1994 Report to Congress Washington, D.C. EPA 841-R- 95-005.) These studies, which provide important data regarding storm water runoff and associated pollutant loads, are briefly discussed below. (For an extensive summary and review of storm water research, see Makepeace, D.K., Smith, D.W., and S.J. Stanley 1995. [[Page 1539]] ``Urban Storm Water Quality: Summary of Contaminant Data.'' Critical Reviews in Environmental Science and Technology, 25(2):93-139.). The Nationwide Urban Runoff Program (NURP) study, which was conducted to facilitate understanding of the nature of urban runoff from residential, commercial, and industrial areas, is the largest study of storm water undertaken to date. One focus of the NURP study was to characterize the water quality of discharges from separate storm sewer systems that drain residential, commercial, and light industrial (industrial parks) sites. Storm water samples from 81 residential and commercial properties in 22 urban/suburban areas nationwide were collected and analyzed during a 5-year period, between 1978 and 1983. The majority of samples collected in the study were analyzed for eight conventional pollutants and three metals. Data collected under the NURP study indicated that discharges from separate storm sewer systems draining runoff from residential, commercial, and light industrial areas carried more than ten times the level of total suspended solids (TSS) on an annual loading basis, as discharges from municipal sewage treatment plants that provide secondary treatment. The study compared TSS in runoff from residential and commercial sites (180 mg/l) with TSS in effluent from treatment plants providing secondary treatment (25 mg/l). The NURP study also indicated that runoff from residential and commercial areas carried somewhat higher annual loadings of chemical oxygen demand (COD), total lead, and total copper compared to effluent from secondary treatment plants. When analyzing annual loadings associated with storm water runoff, it is important to note that discharges associated with urban runoff are highly intermittent and that short-term loadings may have shock loading effects on receiving water, such as low dissolved oxygen levels. NURP study findings also showed that fecal coliform counts in urban runoff are typically in the tens to hundreds of thousands per hundred milliliter of runoff during warm weather conditions, although the study suggested that fecal coliform may not be the most appropriate indicator organism for identifying potential health risks in storm water runoff. Monitoring data summarized in the NURP study provide important information about urban runoff from residential, commercial, and light industrial areas. The NURP study did conclude, however, that the quality of urban runoff can be adversely affected by several sources of pollution that were not directly evaluated in the study, including illicit discharges, construction site runoff, and illegal dumping. The findings of the NURP study were reinforced by findings reported in a study entitled, U.S. Geological Survey-Storm Water Data Base for 22 Metropolitan Areas Throughout the United States (Driver et al., 1985). This report summarized monitoring data compiled during the mid-1980s, covering 717 storm events at 99 sites in 22 metropolitan areas. In sum, the U.S. Geological Survey (USGS) monitoring most consistently observed problems of metals and sediment concentrations in urban storm water runoff. The report entitled, America's Clean Water--the States' Nonpoint Source Assessment (ASIWPCA, 1985), is a comprehensive study of diffuse pollution sources. Conducted under the sponsorship of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) and EPA, the study revealed that 38 States reported urban runoff as a major cause of designated beneficial use impairment and 21 States reported storm water runoff from construction sites as a major cause of use impairment. The National Water Quality Inventory, 1994 Report to Congress (U.S. EPA, 1995b) provides a national assessment of water quality, based on biennial reports submitted by the States under 305(b) of the CWA. In the 305(b) reports, States, Tribes, and Territories assess their individual water quality control programs by examining attainment or nonattainment of designated uses. A designated use is the legally applicable use specified in a water quality standard for a watershed, waterbody, or segment of a waterbody. As such, each 305(b) report must indicate the fraction of a States' waters that are fully supporting, partially supporting, or not supporting designated beneficial uses. Designated uses include support of aquatic life or water-contact recreation. The 1994 Report to Congress--based on a compilation of 60 individual 305(b) reports submitted by States, Tribes, and Territories--assessed the following percentages of total waters nationwide: 17 percent of river and stream miles, 42 percent of lake, pond, and reservoir acres, and 78 percent of estuary square miles. In waterbodies where designated beneficial uses were not being met, States, Tribes, and Territories first identified and then assigned water quality impairments based on the following categories of sources: diffuse sources, industrial process wastewaters and municipal sewage, combined sewer overflows, and natural and other sources. Leading sources of water quality impairment nationwide identified in the report include diffuse sources (i.e., urban storm water runoff-- runoff from agricultural and urban sources, construction sites, land disposal of waste, and resource extraction), industrial process wastewaters, and municipal point sources. The report identified industrial process wastewaters as a leading source of pollution for 11 percent of impaired acres of lakes, ponds, and reservoirs and for 27 percent of acres of estuaries. The report cited municipal point sources as a leading source of pollution for 17 percent of impaired rivers and streams, 19 percent of impaired lakes, ponds, and reservoirs, and 39 percent of impaired estuaries. The report further assessed pollution from diffuse sources, including storm water runoff from agricultural and urban sources, construction sites, land disposal of waste, and resource extraction and indicated that diffuse sources were a leading cause of impaired waters, as follows. Twelve percent of rivers and streams were impaired by urban runoff/storm sewers, and 11 percent were impaired by resource extraction. Eighteen percent of lakes, ponds, and reservoirs impaired by urban runoff/storm sewers, and 11 percent were impaired by land disposal of wastes. Forty-six percent of estuaries were impaired by urban runoff/storm sewers, and 13 percent were impaired by land disposal of wastes. It should be noted that storm water runoff from urban areas contributes a much broader range of pollutants than the section 305(b) reports are intended to evaluate. b. Illicit Discharges Studies have shown that storm water discharges from separate storm sewer systems often include wastes and wastewater from non-storm water sources, commonly referred to as illicit discharges. These discharges are ``illicit'' because the storm sewer systems are not designed to accept and discharge, or to process, such wastes. These discharges would be required to be permitted under the CWA. As a result, illicit discharges to separate storm sewer systems can create severe widespread contamination and water-quality problems. A particular problem involves illicit discharges of sanitary wastes that can be directly linked to high bacterial counts in receiving waters and can be dangerous to public health. The NURP study, discussed previously, determined that during [[Page 1540]] substantial dry periods, many storm water outfalls continue to discharge to receiving waterbodies. Pollutant levels in these flows, which are commonly referred to as dry weather flows, were shown to be high enough to significantly degrade receiving water quality. The Ann Arbor and Ypsilanti water quality projects inspected 660 businesses, homes, and other buildings and identified 14 percent of the buildings as having improper storm sewer drain connections. The program assessment revealed that, on average, 60 percent of automobile-related businesses, including service stations, automobile dealerships, car washes, body shops, and light industrial facilities, had illicit connections to storm sewer drains. The program assessment also showed that a majority of the illicit discharges to the storm sewer system resulted from improper plumbing and connections, which had been approved by the municipality when installed. (Huron River Pollution Abatement Program, Washtenaw County Statutory Drainage Board, 1987.) Inflows from aging sanitary sewer collection systems are another illicit discharge-related problem. Sanitary sewer systems frequently develop leaks and cracks resulting in discharges of pollutants to receiving waters through separate storm sewers. These pollutants include sanitary waste and sewer main construction materials (e.g., asbestos cement, brick, cast iron, vitrified clay). Municipalities have long recognized the problems of storm water infiltration into sanitary sewer collection systems, because this type of infiltration often disrupts the operation of the municipal sewage treatment plant. However, the reverse problem of sewage exfiltration out of the sanitary sewer collection system into the storm water collection system can occur during dry weather periods. c. Construction Site Runoff Storm water discharges generated during construction activities can cause an array of water quality impacts. Specifically, the biological, chemical, and physical integrity of the waters may become severely compromised. Water quality impairment results, in part, because a number of pollutants are preferentially absorbed onto mineral or organic particles found in fine sediment. The interconnected process of erosion (detachment of the soil particles), sediment transport and delivery is the primary pathway for introducing key pollutants, such as nutrients (particularly phosphorus), metals, and organic compounds into aquatic systems (Novotny, V. and G. Chesters. 1989. ``Delivery of Sediment and Pollutants from Nonpoint Sources: A Water Quality Perspective.'' Journal of Soil and Water Conservation, 44(6): 568- 576.). Estimates indicate that 80 percent of the phosphorus and 73 percent of the Kjeldahl nitrogen in streams is associated with eroded sediment (USDA. 1989. The Second RCA Appraisal, Soil, Water and Related Resources on Nonfederal Land in the United States, Analysis of Condition and Trends, cited in Fennessey, L.A.J., and A.R. Jarrett. 1994. ``The Dirt in a Hole: a Review of Sedimentation Basins for Urban Areas and Construction Sites.'' Journal of Soil and Water Conservation, 49(4): 317-323.). In watersheds experiencing intensive construction activity, the localized impacts of water quality may be severe because of high pollutant loads, primarily sediments. Siltation is the second largest cause of impaired water quality in rivers and lakes (U.S. EPA, 1995b, p. ES-8.). Introduction of coarse sediment (coarse sand or larger) or a large amount of fine sediment is also a concern because of the potential of filling lakes and reservoirs (along with the associated remediation costs for dredging), as well as clogging stream channels (e.g., Paterson, R.G., Luger, M.I., Burby, E.J., Kaiser, E.J., Malcolm, H.R., and A.C. Beard. 1993. ``Costs and Benefits of Urban Erosion and Sediment Control: North Carolina Experience.'' Environmental Management, 17(2):167-178.). Large inputs of coarse sediment into stream channels will initially reduce stream depth and minimize habitat complexity by filling in pools (U.S. Environmental Protection Agency. 1991. Monitoring Guidelines to Evaluate Effects of Forestry Activities on Streams in the Pacific Northwest and Alaska. Seattle, WA: Region 10, Water Division. 166 pp. EPA/910/9-91-001.). In addition, studies have shown that stream reaches affected by construction activities often extend well downstream of the construction site. For example, between 4.8 and 5.6 kilometers of stream below construction sites in the Patuxent River watershed were observed to be impacted by sediment inputs (Fox, H.L. 1974. Effects of Urbanization on the Patuxent River, with Special Emphasis on Sediment Transport, Storage, and Migration. Ph.D. Dissertation, Johns Hopkins University, Baltimore, Maryland, 276 pp. as cited in Klein, R.D. 1979. ``Urbanization and Stream Quality Impairment.'' Water Resources Bulletin, 15(4): 948-963.). A primary concern at most construction sites is the erosion and transport process related to fine sediment because rain splash, rills (i.e., a channel small enough to be removed by normal agricultural practices and typically less than 1 foot deep), and sheetwash (California Storm Water Best Management Practice Handbooks-- Construction Activity, Blue Print Service, Oakland, CA.) encourage the detachment and transport of this material to waterbodies. Forest road construction sites in steep areas or along stream banks, however, may initiate landslides, debris flows, or other types of mass wasting events (Megahan, W.F. 1984. ``Road Effects and Impacts--Watershed.'' In Proceedings, Forest Transportation Symposium, USDA Forest Service Region 2, Lakewood, CO. pp, 57-97). In these cases, coarse sediment inputs may be of greatest concern. Construction sites can also generate other pollutants associated with wastes onsite such as sanitary wastes or concrete truck washout. Although streams and rivers naturally carry sediment loads, erosion from construction sites and runoff from developed areas can elevate these loads to levels well above those in undisturbed watersheds. It is generally acknowledged that erosion rates from construction sites are much greater than from almost any other land use (Novotny, V. and H. Olem. 1994. Water Quality: Prevention, Identification, and Management of Diffuse Pollution. Van Nostrand Reinhold, NY. p. 36.). Results from both field studies and erosion models indicate that erosion rates from construction sites are typically an order of magnitude larger than row crops and several orders of magnitude greater than rates from well- vegetated areas, such as forests or pastures (U.S. Department of Agriculture, Soil Conservation Service. 1970. Controlling Erosion on Construction Sites. Agriculture Information Bulletin, Washington, D.C. 32 pp.; Meyer, L.D., Wischmeier, W.H., and W.H. Daniel. 1971. ``Erosion, Runoff and Revegetation of Denuded Construction Sites.'' Transactions of the ASAE, 14(1):138-141; Owen, O.S. 1975. Natural Resource Conservation. MacMillan, New York as cited in Paterson, R.G., Luger, M.I., Burby, R.J., Edward, J.K., Malcom, H.R., and A.C. Beard. 1993. ``Costs and Benefits of Urban Erosion and Sediment Control: The North Carolina Experience.'' Environmental Management, 17(2): 167- 178.). Wolman and Schick (Wolman, M.G. and A.P. Schick. 1967. ``Effects of Construction on Fluvial Sediment, Urban and Suburban Areas of Maryland.'' Water Resources Research, 3(2): 451-464) studied the impacts of development on fluvial systems in [[Page 1541]] Maryland and determined that sediment yields in areas undergoing construction were 1.5 to 75 times greater than detected in natural or agricultural catchments. The authors summarize the potential impacts of construction on sediment yields by stating that ``the equivalent of many decades of natural or even agricultural erosion may take place during a single year from areas cleared for construction.'' (Wolman and Schick, 1967) Similar impacts from storm water runoff have been reported in a number of other studies. For example, Daniel et al. monitored three residential construction sites in southeastern Wisconsin and determined that annual sediment yields were more than 19 times the yields from agricultural areas (Daniel, T.C., McGuire, D., Stoffel, D., and B. Miller. 1979. ``Sediment and Nutrient Yield from Residential Construction Sites.'' Journal of Environmental Quality, 8(3): 304- 308.). Studies have examined the effects of road construction on erosion rates and sediment yields in forested areas. In northern Idaho, the erosion rate per unit area of surface cleared for logging road construction averaged 220 times the erosion rate of undisturbed areas over a 6-year period (Megahan, W.F., and W.J. Kidd. 1972. Effects of Logging Roads on Sediment Production Rates in the Idaho Batholith. USDA Forest Service Research Paper INT-123, Odgen, UT. 14pp.). Other studies have documented increased surface erosion following logging road construction, but at increases smaller than the 220-fold increase reported in the 1972 study (Megahan, 1984). A highway construction project in West Virginia disturbed only 4.2 percent of a 4.72 square mile basin, but resulted in a three-fold increase in suspended sediment yields (Downs, S.C., and D.H. Appel. Progress Report on the Effects of Highway Construction on Suspended- Sediment Discharge in the Coal River and Trace Fork, West Virginia. U.S. Geological Survey Water Resources Investigations Report 84-4275, Charleston, WV. 20pp.). During the largest storm event, it was estimated that 80 percent of the sediment in the stream originated from the construction site. As is often the case, the increase in suspended sediment load could not be detected further downstream, where the drainage area was more than 50 times larger (269 sq. mi.). Another study evaluated the effect of 290 acres of highway construction on watersheds ranging in size from 5 to 38 square miles. Suspended sediment loads in the smallest watershed increased by 250 percent, and the estimated sediment yield from the construction area was 37 tons/ acre over a 2-year period (Hainly, R.A. 1980. The Effects of Highway Construction on Sediment Discharge into Blockhouse Creek and Stream Valley Run, Pennsylvania. U.S. Geological Survey Water Resources Investigations Report 80-68, Harrisburg, PA. 50pp.). A more recent study in Hawaii showed that highway construction increased suspended sediment loads by 56 to 76 percent in three small (1 to 4 sq. mi.) basins (Hill, B.R. 1996. Streamflow and Suspended-Sediment Loads Before and During Highway Construction, North Halawa, Haiku, and Kamooalii Drainage Basins, Oahu, Hawaii, 1983-91. U.S. Geological Survey Water Resources Investigations Report 96-4259, Honolulu, HI. 34pp.) A 1970 study determined that sediment yields from construction areas can be as much as 500 times the levels detected in rural areas (National Association of Counties Research Foundation. 1970. Urban Soil Erosion and Sediment Control. U.S. Department of the Interior, Federal Water Quality Administration, Water Pollution Control Research Series, Program #15030 DTL, Washington, D.C.) Yorke and Herb (Yorke, T.H., and W.J. Herb. 1978. Effects of Urbanization on Streamflow and Sediment Transport in the Rock Creek and Anacostia River Basins, Montgomery County, Maryland, 1962-74. U.S. Geological Survey Professional Paper 1003, Washington, DC.) evaluated nine subbasins in the Maryland portion of the Anacostia watershed for more than a decade in an effort to define the impacts of changing land use/land cover on sediment in runoff. Average annual suspended sediment yields for construction sites ranged from 7 to 100 tons/acre. Daniel et al. (Daniel et al., 1979) identified total storm runoff, followed by peak storm runoff, as the most influential factors controlling the sediment loadings from residential construction sites. Storm water discharges from construction sites that occur when the land area is disturbed (and prior to surface stabilization) can severely impact designated uses. Examples of designated uses include public water supply, recreation, and propagation of fish and wildlife. The siltation process described previously can threaten all three designated uses by (1) depositing high concentrations of pollutants in public water supplies, (2) decreasing the depth of a waterbody which can result in its limited use by boaters, swimmers, and other recreational enthusiasts, and (3) directly impacting the habitat of fish and other aquatic species which can limit their ability to reproduce. Excess sediment can cause a number of other problems for waterbodies. It is associated with increased turbidity and reduced light penetration in the water column, as well as more long-term effects associated with habitat destruction and increased difficulty in filtering drinking water. Numerous studies have examined the effect that excess sediment has on aquatic ecosystems. For example, sediment from road construction activity in Northern Virginia reduced aquatic insect and fish communities by up to 85 percent and 40 percent, respectively (Reed, J.R. 1997. Stream Community Responses to Road Construction Sediments. Bulletin No. 97. Virginia Water Resources Research Center, Virginia Polytechnic Institute, Blacksburg, Virginia, as cited in Klein, R.D. 1990. A Survey of Quality of Erosion and Sediment Control and Storm Water Management in the Chesapeake Bay Watershed. Chesapeake Bay Foundation, Annapolis, MD.) Other studies have shown that fine sediment (fine sand or smaller) adversely affects aquatic ecosystems by reducing light penetration, impeding sight-feeding, smothering benthic organisms, abrading gills and other sensitive structures, reducing habitat by clogging interstitial spaces within a streambed, and reducing the intergravel dissolved oxygen by reducing the permeability of the bed material (Everest, F.H., Beschta, J.C., Scrivener, K.V., Koski, J.R., Sedell, J.R., and C.J. Cederholm. 1987. ``Fine Sediment and Salmonid Production: A Paradox.'' Streamside Management: Forestry and Fishery Interactions, Contract No. 57, Institute of Forest Resources, University of Washington, Seattle, WA. pp.98-142. For example, 4.8 and 5.6 kilometers of stream below construction sites in the Patuxent River watershed in Maryland were found to have fine sediment amounts 15 times greater than normal (Fox, 1974 as cited in Klein, 1979). Benthic organisms in the streambed can be smothered by sediment deposits, causing changes in aquatic flora and fauna such as fish species composition (Wolman and Schick, 1967). In addition, the primary cause of coral reef degradation in coastal areas is attributed to land disturbances and dredging activities due to urban development (Rogers, C.S. 1990. ``Responses of Coral Reefs and Reef Organizations to Sedimentation.'' Marine Ecology Progress Series, 62:185-202.). While most of the published data are from construction sites larger than 5 acres, there are no compelling reasons why erosion rates and sediment yields from smaller (less than 5 acres) [[Page 1542]] construction sites should be substantially different than those from larger (more than 5 acres) construction sites. The limited amount of data suggests that sediment yields from small sites are as high as or higher than the 20 to 150 tons/acre/year measured from larger sites (MacDonald, L.H. 1997. Technical Justification for Regulating Construction Sites 1-5 Acres in Size. Unpublished report submitted to the U.S. Environmental Protection Agency, Washington, DC. 28 pp.) Furthermore, logic suggests that the cumulative effects of numerous small sites will have impacts similar to those of larger sites in a particular area. The expected contribution of small sites to total sediment yields depends, in part, on the extent to which erosion and sedimentation controls are being applied. Current storm water regulations require erosion and sedimentation controls on larger sites in urban areas which suggests that in the absence of any erosion and sedimentation controls smaller construction sites contribute a disproportionate amount of the total sediment from construction activities (MacDonald, 1997). Another view that supports the need for controls on smaller construction sites is that smaller sites are less likely to have an effective plan to control erosion and sedimentation, that these plans are less likely to be properly implemented and maintained, and that small sites are less likely to be inspected (Brown, W. and D. Caraco. 1997. Controlling Storm Water Runoff Discharges from Small Construction Sites: A National Review. Submitted to the U.S. Environmental Protection Agency, Office of Wastewater Management, Washington, DC. by the Center for Watershed Protection, Silver Spring, MD). Sediment delivery in urban areas should produce little difference between larger and smaller construction sites because the runoff from either site is usually delivered directly to the storm drain network. Any assessment of impacts from smaller construction sites should consider the proportion of a particular area that is associated with small construction activity. Brown and Caraco (Brown and Caraco, 1997) surveyed 219 local jurisdictions to assess erosion and sediment control (ESC) programs. Seventy respondents provided data on the number of ESC permits for construction sites smaller than 5 acres. In 27 cases (38 percent of the respondents), more than three-quarters of the permits were for sites smaller than 5 acres; in another 18 cases (26 percent), more than half of the permits were for sites smaller than 5 acres. In addition, data on the total acreage disturbed by smaller construction sites have been collected recently in two States (MacDonald, 1997). The most recent and complete data set is the listing of the disturbed area for each of the 3,831 construction sites permitted in North Carolina for 1994-1995 and 1995-1996. Nearly 61 percent of the sites that were 1 acre or larger were between 1.0 and 4.9 acres in size. This proportion was consistent between years. Data showed that this range of sites accounted for 18 percent of the total area disturbed by construction. The values showed very little variation between the 2 years of data. The total disturbed area for all sites over this 2-year period was nearly 33,000 acres, or about 0.1 percent of the total area of North Carolina. As in many metropolitan areas, nine counties in the San Francisco Bay area only require ESC permits for sites larger than 5 acres. Nearly 70 percent of the 542 permits issued in the Bay area during the last 3 years were for sites between 5 and 25 acres in size. Conversations with several municipalities indicate that there may be as many as five construction sites smaller than 5 acres for every site larger than 5 acres (MacDonald, 1997). Given the available data, MacDonald (1997) estimates that construction sites less than 5 acres probably account for slightly less than one-third of the total area under construction. Regulating construction sites 1 to 5 acres in size will probably increase the amount of area being regulated by approximately 20 to 30 percent. Given the high erosion rates associated with most construction sites, this indicates that small construction sites can be a significant source of water quality impairment, particularly in small watersheds that are undergoing rapid development. d. Improper Disposal of Materials Improper disposal of materials may result in contaminated discharges from separate storm sewer systems in two ways. First, materials may be disposed of directly in a catch basin or other storm water conveyance. Second, materials disposed of on the ground may either drain directly to a storm sewer or be washed into a storm sewer during a storm event. Improper disposal of materials to street catchbasins and other storm sewer inlets often occurs because many people mistakenly believe that disposal to such areas is an environmentally sound practice. Part of the confusion may occur because some areas are served by combined sewer systems, which are part of the sanitary sewer collection system, and people assume that materials discharged to a catchbasin will reach an appropriate municipal sewage treatment plant. Materials that are commonly disposed of improperly include used oil; household toxic materials; radiator fluids; and litter, such as disposable cups, cans, and fast-food packages. EPA believes that there has been increasing success in addressing these problems through alternatives such as recycling and household pickup programs. B. Statutory Background In 1972, Congress enacted the CWA to prohibit the discharge of any pollutant to waters of the United States from a point source unless the discharge is authorized by an NPDES permit. Congress added CWA section 402(p) in 1987 to require implementation of a comprehensive approach for addressing storm water discharges. Section 402(p)(1) prohibits EPA or NPDES-authorized States or Tribes from requiring NPDES permits for discharges composed entirely of storm water (``storm water discharges'') until October 1, 1992, except for the following five classes of storm water discharges specifically listed under section 402(p)(2): (A) a discharge subject to an NPDES permit before February 4, 1987 (B) a discharge associated with industrial activity (C) a discharge from a municipal separate storm sewer system serving a population of 250,000 or more (D) a discharge from a municipal separate storm sewer system serving a population of 100,000 or more but less than 250,000 (E) a discharge that an NPDES permitting authority determines to be contributing to a violation of a water quality standard or a significant contributor of pollutants to the waters of the United States. The October 1992 deadline was later extended to October 1, 1994, by the Water Resources Development Act of 1992. Congress clarified and amended the requirements for NPDES permits for storm water discharges in section 402(p)(3)(A). This section requires storm water discharges associated with industrial activity to meet all applicable provisions of section 402 and section 301 of the CWA, including technology-based requirements and any more stringent requirements necessary to meet water quality standards. Section 402(p)(3)(B) establishes NPDES permit standards for discharges from municipal separate storm sewer systems. NPDES permits for discharges from municipal [[Page 1543]] separate storm sewer systems (1) may be issued on a system or jurisdiction-wide basis, (2) must include a requirement to effectively prohibit non-storm water discharges into the storm sewers, and (3) must require controls to reduce pollutant discharges to the maximum extent practicable, including best management practices. As with all point source discharges under the CWA, storm water discharges are subject to more stringent limitations when necessary to meet applicable water- quality based standards pursuant to CWA section 301(b)(1)(C). In CWA section 402(p)(4), Congress established statutory deadlines for the initial steps in implementing the NPDES program for storm water. This section required development of NPDES permit application regulations, submission of NPDES permit applications, issuance of NPDES permits sources covered by section 402(p)(2), and compliance with NPDES permit conditions. This section instructed EPA to issue regulations specifying NPDES permitting application requirements by February 4, 1989. In addition, this section required industrial facilities and large municipal separate storm sewer systems to submit NPDES permit applications by February 4, 1990. Medium municipal separate storm sewer systems were to submit NPDES permit applications by February 4, 1992. EPA was required to issue or deny all NPDES permits 1 year after each of the respective deadlines, and facilities must comply with all permit conditions within 3 years of final NPDES permit issuance. All other storm water discharges fell under the statutory moratorium for the requirement for an NPDES permit. EPA and authorized NPDES States were prohibited from requiring a permit for such sources until October 1, 1994. Congress granted extensions to the NPDES permit application process for selected classes of discharges associated with industrial activity. On December 18, 1991, Congress enacted the Intermodal Surface Transportation Efficiency Act (ISTEA), which extended NPDES permit application deadlines for most storm water discharges associated with industrial activity from facilities that are owned or operated by certain municipalities. EPA and States authorized to administer the NPDES program could not require any municipality with a population of less than 100,000 to apply for or obtain an NPDES permit for any storm water discharge associated with industrial activity prior to October 1, 1992, except for storm water discharges from an airport, power plant, or uncontrolled sanitary landfill. See 40 CFR 122.26(e)(1); 57 FR 11524, April 2, 1992 (reservation of NPDES application deadlines for ISTEA facilities). C. EPA's Reports to Congress Under CWA section 402(p)(5), EPA, in consultation with the States, was required to conduct a study, first, to identify unregulated sources of storm water discharges, as well as to determine the nature and extent of pollutants in such discharges. Second, the study was to establish procedures and methods of control of such discharges to the extent necessary to mitigate impacts on water quality. Section 402(p)(5) also required EPA to report the results of the first two components of that study to Congress by October 1, 1988, and the final report by October 1, 1989. In March 1995, EPA submitted a report wherein EPA reviewed and analyzed municipal and industrial facilities not already regulated under the initial NPDES regulations for storm water (U.S. Environmental Protection Agency, Office of Water. 1995. Storm Water Discharges Potentially Addressed by Phase II of the National Pollutant Discharge Elimination System Storm Water Program: Report to Congress. Washington, D.C. EPA 833-K-94-002). The report also analyzed associated pollutant loadings and water quality impacts from these unregulated sources. Based on identification of unregulated municipal sources and analysis of information on impacts of storm water discharges from municipal sources, the report recommended that the storm water program focus on the 405 ``urbanized areas'' identified by the Bureau of the Census. The report further found that a number of discharges from unregulated industrial facilities warranted further investigation to determine the need for regulation. The report classified these unregulated industrial discharges in two groups, Group A and Group B. Group A included sources that may be considered a high priority for inclusion in the NPDES program for storm water because discharges from these sources are similar or identical to regulated sources. These ``look alike'' sources were not regulated in the initial NPDES regulations for storm water due to the language used to define ``associated with industrial activity.'' In the initial regulations for storm water, ``industrial activity'' is identified using Standard Industrial Classification (SIC) codes. The use of SIC codes lead to incomplete categorization of industrial activities with discharges that needed to be regulated to protect water quality. Group B included 18 industrial sectors, specifically sources that EPA expected to contribute to storm water contamination due to the activities conducted and pollutants anticipated onsite (e.g., vehicle maintenance, machinery and electrical repair, and intensive agricultural activities). EPA reported on the latter component of the section 402(p)(5) study via President Clinton's Clean Water Initiative, which was released on February 1, 1994 (U.S. Environmental Protection Agency, Office of Water. 1994. Clinton's Clean Water Initiative. Washington, D.C. EPA 800-R-94-001). This report addresses a number of issues associated with NPDES requirements for storm water discharges and proposes (1) establishing a phased compliance with a water quality standards approach for discharges from municipal separate storm sewer systems with priority on controlling discharges from municipal growth and development areas, (2) clarifying that the maximum extent practicable standard should be applied in a site-specific, flexible manner, taking into account cost considerations as well as water quality effects, (3) providing an exemption from the NPDES program for storm water discharges from industrial facilities with no activities or no significant materials exposed to storm water, (4) providing extensions to the statutory deadlines to complete implementation of the NPDES program for the storm water program, (5) targeting urbanized areas for the requirements in the NPDES program for storm water, and (6) providing control of discharges from inactive and abandoned mines located on Federal lands in a more targeted, flexible manner. D. EPA Regulations for the NPDES Program for Storm Water The purpose of the regulations is to protect water quality. EPA's findings are explained in Section I.A. For the final step in implementation of the point source control program for storm water, CWA section 402(p)(6) requires EPA, in consultation with States and local officials, to issue regulations for the designation of the remaining unregulated discharges to be regulated to protect water quality based on studies conducted under section 402(p)(6), which is discussed below. Under section 402(p)(6), EPA is to establish an extension of the existing storm water program to regulate newly designated sources. At a minimum, the extension must establish (1) priorities, (2) requirements for State storm water management programs, and (3) expeditious deadlines. The section 402(p)(6) program may include [[Page 1544]] performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate. For additional background information about the initial steps in the NPDES program for storm water, see 55 FR 47990, November 16, 1990 (final regulations under CWA sections 402(p)(3) and (p)(4)); 60 FR 40230, August 7, 1995 (final regulations establishing permit application deadlines under section 402(p)(6)). EPA is currently subject to a consent order to propose supplemental rules under section 402(p)(6) by November 25, 1997 (on July 16, 1997, EPA filed papers to seek an extension of the signature date for today's proposal from the original date of September 1, 1997 to the current date) and to finalize these rules by March 1, 1999. See Natural Resources Defense Council, Inc. v. Browner, Civ. No. 95-634 PLF (D.D.C., April 7, 1995). The Agency and NRDC also entered into a settlement agreement to address the portions of the existing storm water rules remanded by the 9th Circuit according to the same schedule as the consent order. The United States District Court for the District of Columbia entered a consent decree to resolve this litigation. EPA and NRDC have also stipulated to a modification of a companion settlement agreement to extend the date for proposal of regulations to address portions of the existing storm water regulations (no exposure and construction below 5 acres), which were remanded to the Agency by the U.S. Court of Appeals for the Ninth Circuit. In today's notice, EPA is proposing to control storm water discharges of concern through the NPDES program. Please refer to today's preamble Section I.A. for a more detailed discussion of the impacts of urbanization on water quality. EPA is also strongly encouraging partnerships and the watershed approach as the management framework for efficiently, effectively, and consistently protecting and restoring aquatic ecosystems and protecting public health. These regulations are intended to facilitate the implementation of a watershed approach by providing the NPDES permitting authority and municipalities the flexibility to address local environmental problems by using general permits. E. EPA Outreach Efforts On September 9, 1992, EPA published a notice requesting information and public comment on how to prepare regulations under section 402(p)(6) (see 57 FR 41344). The notice identified three sets of issues associated with developing new NPDES storm water regulations: (1) how should EPA identify unregulated sources of storm water to protect water quality, (2) what types of control strategies should EPA develop for these sources, and (3) what are appropriate deadlines for implementing new requirements. The September 9, 1992, notice presented a range of alternatives under each issue in an attempt to illustrate, and obtain input on, the full range of potential approaches for the regulation of unregulated sources to protect water quality. The notice recognized that potential sources for coverage under the section 402(p)(6) regulations would fall into two main categories: municipal separate storm sewer systems and individual (commercial and residential) sources. EPA recognized that a major distinction between most options for identifying sources to be regulated was either to require targeted municipalities to develop source controls and management programs for storm water discharges within their jurisdictions or to require permits for discharges from facilities on an individual basis. EPA received more than 130 comments on the September 9, 1992, notice. Approximately 43 percent of the comments came from municipalities, 29 percent from trade groups or industries, 24 percent from State or Federal agencies, and approximately 4 percent from other miscellaneous sources. No comments were received from environmental groups. For further discussion of the comments received, see Storm Water Discharges Potentially Addressed by Phase II of the National Pollutant Discharge Elimination System: Report to Congress (EPA, 1995a), pp. 1-21 to 1-22, and Appendix J (which provides a detailed summary of the comments received as they relate to the specific issues raised in the notice). In early 1993, the Rensselaerville Institute and EPA held public and expert meetings to assist in developing and analyzing options for identifying unregulated sources and possible controls. The report on the 1993 meetings indicates that the two options most favored by the various groups participating were:A program in which States would select sources to be controlled in a manner that was consistent with criteria developed by EPA. The comprehensive program under section 402(p)(6) would provide States with flexibility to rely on either NPDES requirements or other frameworks to control targeted sources. A tiered approach that would provide for EPA selection of high priority sources for control by NPDES permits and State selection of other sources for control under a State water quality program other than the NPDES program. (Appendix I, ``Report on the EPA Storm Water Management Program (Rensselaerville Study).'' EPA, 1995a). EPA also conducted outreach with representatives of small entities in conjunction with the convening of a Small Business Advocacy Review Panel under the Small Business Regulatory Enforcement Fairness Act (SBREFA). EPA, in consultation with the Small Business Administration, invited 29 small entity representatives and streamlining representatives to participate in this outreach effort. Many of the representatives contacted in this outreach had been working closely with EPA in developing this proposed rule through the FACA Committee and the Storm Water Phase II FACA Subcommittee. The further discussion of this process is found at Section VII, Regulatory Flexibility Act. In May 1997, EPA conducted two telephone conference calls and held an all-day meeting at EPA headquarters to solicit the advice and recommendations of representatives. EPA eventually received 12 sets of written comments from representatives (see Small Business Advocacy Review Panel (SBREFA). August 7, 1997. Final Report on EPA's Planned Proposed Rule for the National Pollutant Discharge Elimination System: Storm Water Phase II.) On June 19, 1997, the Small Business Advocacy Review Panel was convened to review the proposed rule. The panel consisted of officials from EPA, the Small Business Administration, and the Office of Management and Budget. The panel considered representatives' comments previously submitted to EPA and allowed representatives to provide additional comments. Based on comments and its own discussions, the Panel has provided findings regarding the elements of an IRFA and specific recommendations regarding the proposed rule to EPA. The recommendations of the panel are discussed in Section VII.B., Regulatory Flexibility Act, SBREFA Panel Process. F. The FACA Committee Effort To assist EPA in coordinating implementation of the urban municipal wet weather water pollution control program, EPA established the Urban Wet Weather Flows Advisory Committee (hereinafter, ``FACA Committee'') under the Federal Advisory Committee Act (FACA). The Office of Management and Budget approved the charter for the FACA Committee on March 10, 1995. The [[Page 1545]] FACA Committee assisted EPA in developing cost-effective solutions for controlling the environmental and human health impacts of urban wet weather flows with a minimum of regulatory burden. The FACA Committee provided and continues to provide a forum for identifying and addressing issues associated with water quality impacts from these sources. The FACA Committee has two subcommittees: the Storm Water Phase II FACA Subcommittee (the designation and comprehensive program requirements under CWA section 402(p)(6) are often referred to as ``Storm Water Phase II'') and the Sanitary Sewer Overflows (SSOs) FACA Subcommittee. Consistent with the requirements of FACA, the membership of both the FACA Committee and the subcommittees is balanced among EPA's various outside stakeholder interests, including representatives from municipalities, industrial and commercial sectors, agriculture, environmental and public interest groups, States, Indian Tribes, and EPA. Members have been selected and appointed for the duration of the process. A Federal official or EPA employee serves as the Designated Federal Officer and is present at all meetings. All FACA Committee and subcommittee meetings are open to the public and announced in advance in the Federal Register. The Storm Water Phase II FACA Subcommittee met twelve times between September 1995 and October 1997. The 32 subcommittee members discussed the regulatory framework that serves as the basis for today's proposed rule at these meetings as well as during numerous conference calls. EPA provided subcommittee members with four successive drafts of the proposed rule and preamble, outlines of the rule, documents identifying changes made to each draft, and summaries of the written comments received on each draft, including how the comments had been addressed. EPA received extensive written comments from FACA members on a number of occasions, together with extensive oral feedback at a number of meetings and conference calls. Although the Storm Water Phase II FACA Subcommittee has not reached consensus on the details of today's proposal, they have provided EPA with significant input and insights, which EPA has tried to balance and address. Today's proposed regulations respond to President Clinton's direction on regulatory reform. EPA sought to develop a common sense regulatory approach to allow EPA, States, and Tribes to ``manage for results'' and provide for ecosystem protection. EPA believes there is considerable latitude in CWA section 402(p)(6) in establishing the scope of coverage (i.e., the designation of sources to be regulated under the NPDES program for storm water, as well as the comprehensive program for regulating those sources). EPA has benefitted greatly from the variety of view points and the lively exchange of ideas through the FACA Committees and subcommittees. EPA has sought to build upon the issues raised in proposing the scope, method, and timing of the comprehensive program to regulate storm water and to more effectively provide outreach and technical assistance for these new regulations. The Storm Water Phase II FACA Subcommittee was also instrumental in discussing lessons learned from implementation of the existing NPDES program for storm water. Records and iterative draft versions of today's proposal have been available and continue to be available to the public at the Office of Wastewater Management's Home Page (see http://www.epa.gov/owm) or through the Point Source Information Provision Exchange System (PIPES) Home Page (see http://www.epa.gov/ owmitnet/pipes/pipes.htm). The FACA Committee has provided the Storm Water Phase II FACA Subcommittee with several recommendations for improving the existing NPDES program for storm water. Some of these recommendations are reflected as part of today's proposal. The FACA Committee provided recommendations, for example, for the proposal regarding a ``no exposure'' incentive for facilities with storm water discharges ``associated with industrial activity.'' EPA's proposal would apply this recommendation to the designation of unregulated sources under section 402(p)(6) as well. The FACA Committee also recommended that EPA clarify and define the standards applicable to NPDES permit controls for municipal separate storm sewer systems, specifically the standards that permits require for controls to reduce the discharge of pollutants ``to the maximum extent practicable'' (MEP). G. Related Nonpoint Source Programs 1. Section 319 of the Clean Water Act In 1987, section 319 was added to the Clean Water Act to provide a framework for funding State and local efforts to address pollutant sources not addressed by the NPDES program (i.e., nonpoint sources). To obtain funding, States are required to submit Nonpoint Source Assessment Reports identifying State waters that without additional control of nonpoint sources of pollution could not reasonably be expected to attain or maintain applicable water quality standards or the goals and requirements of the CWA. States are also required to prepare and submit for EPA approval a statewide Nonpoint Source Management Program for controlling nonpoint source water pollution to navigable waters within the State and improving the quality of such waters. State program submittals must identify specific best management practices (BMPs) and measures that the State proposes to implement in the first 4 years after program submission to reduce pollutant loadings from identified nonpoint sources to levels required to achieve the stated water quality objectives. State programs funded under section 319 can include both regulatory and nonregulatory State and local approaches. Section 319(b)(2)(B) specifies that a combination of ``nonregulatory or regulatory programs for enforcement, technical assistance, financial assistance, education, training, technology transfer, and demonstration projects'' may be used, as necessary, to achieve implementation of the BMPs or measures identified in the section 319 submittals. Although most States have generally emphasized the use of voluntary approaches in their section 319 programs, some States and local governments have implemented regulations and policies to control pollution from urban runoff. States such as Delaware and Florida, as well as local jurisdictions such as the Lower Colorado River Authority, are pursuing storm water management goals through numerical treatment standards for new development. Many States and local governments have enforceable erosion and sediment control regulations. On a broader scale, nonpoint source pollution is being addressed at the watershed level by such programs as those being implemented by the State of Wisconsin, the Puget Sound Water Quality Authority, and the States that are parties to the Great Lakes Water Quality Agreement. A number of individual States and local communities have adopted legislation or regulations that limit development or require special management practices in areas surrounding water resources of special concern, such as Maryland's Critical Areas Act. 2. Section 6217 of the Coastal Zone Act Reauthorization Amendments Section 6217 of the Coastal Zone Act Reauthorization Amendments (CZARA) of 1990 provides that States with [[Page 1546]] approved coastal zone management programs must develop and submit coastal nonpoint pollution control programs to EPA and the National Oceanic and Atmospheric Administration (NOAA) for approval. Failure to submit an approvable program will result in a reduction of Federal grants under both the Coastal Zone Management Act and section 319 of the CWA. State coastal nonpoint pollution control programs under CZARA must include enforceable policies and mechanisms that ensure implementation of the management measures throughout the coastal management area. Section 6217(g)(5) defines management measures as ``economically achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives.'' Congress mandated a technology-based approach based on technical and economic achievability under the rationale that neither States nor EPA have the money, time, or other resources to create and expeditiously implement a program that depends on establishing cause and effect linkages between particular land use activities and specific water quality problems. If this technology-based approach fails to achieve and maintain applicable water quality standards and to protect designated uses, CZARA 6217(b)(3) requires additional management measures. EPA issued Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters under 6217(g) in January 1993. The guidance identifies management measures for five major categories of nonpoint source pollution: agriculture, forestry, urban, marinas and recreational boating, and hydromodification. The management measures reflect the greatest degree of pollutant reduction that is economically achievable for each of the listed sources. These management measures provide reference standards for the States to use in developing or refining their coastal nonpoint programs. In general, the management measures were written to describe systems designed to reduce the generation of pollutants. A few management measures, however, contain quantitative standards that specify pollutant loading reductions. For example, the New Development Management Measure, which is applicable to construction in urban areas, requires (1) that by design or performance the average annual total suspended solid loadings be reduced by 80 percent and (2) to the extent practicable, that the pre-development peak runoff rate and average volume be maintained. The management measures approach was adopted to provide State officials flexibility in selecting strategies and management systems and practices that are appropriate for regional or local conditions, provided that equivalent or higher levels of pollutant control are achieved. Storm water discharges regulated under the existing NPDES program, such as discharges from municipal separate storm sewers serving a population of 100,000 or more and construction activities that disturb 5 or more acres, do not need to be addressed in Coastal Nonpoint Pollution Control Programs. However, potential new sources, such as urban development adjacent to or surrounding municipal systems serving a population of 100,000 or more, smaller urbanized areas, and construction sites that disturb less than 5 acres, that are identified in management measures under section 6217 guidance need to be addressed in Coastal Nonpoint Pollution Control Programs until such discharges are issued an NPDES permit. EPA and NOAA have worked and continue to work together in their activities to ensure that authorities between NPDES and CZARA do not overlap. EPA and NOAA published Coastal Nonpoint Pollution Control Program: Program Development and Approval Guidance (1993), which addresses such issues as the basis and process for EPA/NOAA approval of State Coastal Nonpoint Pollution Control Programs, how EPA and NOAA expect State programs to implement management measures in conformity with EPA guidance, and procedures for reviewing and modifying State coastal boundaries to meet program requirements. The document clarifies that States generally must implement management measures for each source category identified in the EPA guidance developed under section 6217(g). The document also sets quantitative performance standards for some measures. Coastal Nonpoint Pollution Control Programs are not required to address sources that are clearly regulated under the NPDES program as point source discharges. Specifically, such programs would not need to address small municipal separate storm sewer systems and construction sites covered under NPDES storm water permits (both general and individual). The guidance also clarifies that regulatory and nonregulatory mechanisms may be used to meet the requirement for enforceable policies and mechanisms, provided that nonregulatory approaches are backed by enforceable State authority ensuring that the management measures will be implemented. Backup authority can include sunset provisions for incentive programs. For example, a State may provide additional incentives if too few owners or operators participate in a tax incentive program or develop mandatory requirements to achieve the necessary implementation of management measures. H. Watershed-based Approach for Water Quality Programs EPA is promoting an integrated watershed approach for storm water and other discharges that focuses on coordinated public and private sector efforts to address the highest priority water quality problems within hydrologically defined geographic areas. The watershed approach is a decisionmaking process that reflects a common strategy for information collection and analysis and a common understanding of the roles, priorities, and responsibilities of all stakeholders within a watershed. Implementation of the watershed approach is critical for the improvement of water quality in the United States, and the approach is an essential priority for EPA's water programs. EPA, therefore, is reevaluating its programs, including the NPDES, ground water, drinking water, and nonpoint source programs, to determine how they can be more effectively incorporated into the watershed approach. EPA intends that a central role be given to watershed planning and analysis by permitting authorities implementing storm water programs under today's proposed rule. While States are not required to use a watershed approach, EPA believes that this approach would significantly improve implementation of today's proposed rule. As discussed in Section II.A., Overview, EPA designed today's proposed rule to facilitate watershed planning and analysis, particularly in the area of designating those storm water sources to be covered under the program or giving regulatory relief to storm water discharges already designated, but also in determining and implementing the requirements for the owners and operators of small municipal separate storm sewer systems. EPA expects that the NPDES permitting authority would work with State agencies who have jurisdiction [[Page 1547]] over nonpoint sources and other areas within the watershed not covered under the NPDES program in the development of a comprehensive watershed plan. EPA's overall support of using watershed-based alternatives is described in greater detail in EPA's Watershed Approach Framework (June 1996; http:/www.epa.gov/OWOW/watershed/framework.html#6b) and NPDES Watershed Strategy (U.S. Environmental Protection Agency. March 1994. Watershed Protection--NPDES Watershed Strategy. Washington, D.C.). The NPDES Watershed Strategy discusses integration of NPDES program functions into a broader watershed protection approach and highlights areas for coordination with stakeholders to promote implementation of the approach. The NPDES Watershed Strategy is based on the following principles: Watershed protection approaches may vary in terms of specific elements, timing, and resources, but all should share a common emphasis and insistence on integrated actions, specific action items, and measurable environmental and programmatic milestones. Related activities within a basin or watershed must be coordinated to achieve the greatest environmental benefit and most effective level of stakeholder involvement. Actions relating to restoration and protection of surface water, ground water, and habitat within a basin should be based upon an integrated decision-making process, a common information base, and a common understanding of the roles, priorities, and responsibilities of all stakeholders within a basin. Staff and financial resources are limited and must be allocated to address environmental priorities as effectively and efficiently as possible. Program requirements that interfere or conflict with environmental priorities should be identified and revised to the extent possible. Accurate information and high quality data are necessary for decision-making and should be collected on an incremental basis; interim decisions should be made based on available data to prevent further degradation and promote restoration of natural resources. The watershed approach would be most successful if all stakeholders are involved. In addition, within a geographic management unit (watershed/basin), a cycle of activities and a schedule for implementation must be established. EPA recognizes that many States are coordinating their authorities, programs, and decisionmaking using a watershed management approach to achieve more efficient and better problem solving. The Agency will continue to encourage the use of the watershed approach through activities that include tailoring the EPA program to support this direction; publishing case studies for States to use as examples; creating a tools directory; undertaking other outreach efforts, such as a quarterly newsletter (Watershed Events); including watershed activities on the EPA Internet Home Page; training for permit writers and the regulated community; and sponsoring conferences, such as ``Watershed 96.'' State representatives of the Storm Water Phase II FACA Subcommittee supported watershed-based implementation strategies and controls and noted the following: (T)he future demands a new model for managing water resources, based on well-defined geographic units such as basins or watersheds, that recognizes all the interconnections within the watershed that define the hydrologic cycle in that area, including surface and groundwaters as well as wetlands. The management of any watershed should reflect all of the things that make it unique, including specific precipitation patterns, topography, soil and geological characteristics, and land use. A systems management approach would involve the development and operation of a comprehensive water resource management program--though ultimately it need not be limited to water resources--within the specific geographic area encompassing the basin or watershed. Components of such a comprehensive program would include water supply, water quality, water conservation, flood protection, land use, and protection of fish and wildlife resources. This can often be done effectively through comprehensive watershed management and planning. As our government policies transition to a systems-based, comprehensive approach to managing water resources, we must introduce increased flexibility and latitude into current programs so that cross- categorical management of resources can flourish. Water resource management policies should also recognize the significant regional variance in the water resource. Management policies must be tailored to local hydrologic and ecological conditions. Any national policy should acknowledge unique regional and state characteristics and provide a framework for development strategies consistent with the national policy. The States recognize that there are significant institutional obstacles, and that the new model needs to be developed in an evolutionary fashion. Substantial involvement of dischargers, users, and the general public will be essential. It will require unprecedented cooperation among many state and local entities, among state and federal agencies, and between states in the case of watersheds crossing state lines. Protection efforts should be coherent and coordinated to make the most efficient use of scarce resources and minimize inconsistency among federal, state, and local programs or agencies. The FACA Committee is developing a recommended framework for integrating urban wet weather discharges, including storm water discharges, into the watershed approach that reflects the key principles outlined in EPA's Watershed Approach Framework and NPDES Watershed Strategy. The committee's recommendations are contained in a draft policy entitled, A Watershed Alternative. This framework would provide that all regulated discharges meet minimum requirements regardless of their geographic location. Based on a review and assessment of watershed conditions and a determination that water quality objectives are not being met in a particular watershed, watershed stakeholders would be able to choose to collectively pursue a watershed approach to address identified water quality problems. A key element of this watershed alternative is the development of a comprehensive watershed plan that describes (1) who will coordinate watershed planning and implementation, (2) the geographic area being covered by the watershed approach, (3) the watershed stakeholders participating in the planning and implementation effort, (4) assessments of aquatic resources and existing or potential water quality problems, (5) the coordinated watershed management activities that will be implemented, (6) the financial plan and schedule for completing the coordinated management activities, and (7) a mechanism for accountability. Once this plan were approved by the applicable regulatory authority(ies), relevant provisions of the watershed plan would be incorporated into relevant regulatory and nonregulatory mechanisms and progress in implementing the watershed plan would be evaluated periodically. The watershed alternative has numerous inherent incentives, including greater opportunities to improve water quality and environmental conditions, more equitable allocation of resources, enhanced program efficiency and lower costs, improved coordination among programs, an improved basis for [[Page 1548]] management decisions, an emphasis on local decisionmaking, greater consistency and responsiveness, increased opportunities to use market- based incentives, and improved public relations. EPA's key principals are also reflected in today's proposed rule. First, the Agency has structured the designation of additional sources by the permitting authority to facilitate the consideration of watershed impacts. The Agency also highly recommends that municipal storm water discharges that would be designated under this proposal be covered under general permits issued on a watershed-wide basis. Such permits could also be written to address other sources in the watershed as well. Where a comprehensive watershed plan has been developed, the Agency believes the components of that plan should be reflected in all permits issued to the parties addressed by the watershed plan. Some stakeholders have raised concerns that the Agency is failing to consider watershed priorities in determining which sources will be designated and in the requirements to be imposed on such sources under today's proposal. The Agency disagrees. The Agency has limited its proposed designation to those sources generally believed to be of significant concern to water quality. While encouraging designation of additional sources based on considerations of water quality, including considerations made on a watershed basis, the Agency also proposes to allow a waiver of otherwise applicable requirements for some sources (construction sites under 5 acres and small municipal separate storm sewer systems serving less than 1,000 people) where the NPDES permitting authority participates in implementing a watershed plan and water quality is not impaired. Further, the Agency proposes flexible requirements for permittees in allowing consideration of BMPs tailored to the needs of the watershed. The Agency believes that this sort of flexibility will generally ensure watershed protection while allowing permitting authorities flexibility to tailor program implementation to the needs of a particular watershed and its stakeholders. II. Description of Proposed Program A. Overview 1. Objectives EPA Seeks to Achieve in Today's Proposal EPA seeks to achieve several objectives in today's proposed rule. Under CWA section 402(p)(6), EPA is required to provide a comprehensive storm water program that designates and controls additional sources of storm water discharges to protect water quality. In addition, EPA is required to address discharges of storm water from the activities exempted under the 1990 storm water regulations that were remanded by the Ninth Circuit Court of Appeals in NRDC v. EPA (9th Circuit, 1992)-- construction activities disturbing less than 5 acres and so-called ``light'' industrial activities not exposed to storm water (see discussion of ``no exposure'' below). EPA is also seeking to address the problem of so-called ``donut holes'' created by the existing NPDES storm water program. Donut holes are municipal separate storm sewer systems located within the urbanized areas that include systems covered by the existing NPDES storm water program, but are not currently addressed by the storm water program because of the particular drafting of the existing regulations. In other words, donut holes are gaps in the existing NPDES storm water program's regulatory scheme. EPA also is trying to facilitate and promote watershed planning as a framework for implementing water quality programs where possible. Although the proposed program can be structured in various ways to regulate the remaining unregulated sources of storm water to protect water quality, EPA believes it can best achieve its objectives through flexible innovations within the framework of the NPDES program. Unlike the storm water regulations EPA promulgated in 1995, EPA no longer proposes to designate all storm water discharges for nationwide coverage under the NPDES program for storm water. The proposed framework for today's proposed rule is one that would balance both nationwide automatic designation and locally based designation. Nationwide designation would apply to those classes or categories of storm water discharges that EPA believes present a high likelihood of having adverse water quality impacts, regardless of location. EPA is proposing to designate the following sources on a nationwide basis: storm water discharges from small municipal separate storm sewer systems located in urbanized areas and construction activities that result in land disturbance equal to or greater than 1 acre. As noted under Section I.A.1, Studies and Assessments of Storm Water Runoff, these two sources can cause significant water quality impacts. Additional sources would not be covered on a nationwide basis either because EPA currently lacks information indicating a consistent potential for adverse water quality impact or because of EPA's belief that the likelihood of adverse impacts on water quality is low, with some exceptions on a more local basis. Additional individual sources or categories of storm water discharges could, however, be covered under the program through a local, watershed-based designation process. Permitting authorities may designate additional small municipal separate storm sewer systems when they develop designation criteria and apply these criteria to small municipal separate storm sewer systems located outside of an urbanized area, in particular those with a population of 10,000 or more and a population density of at least 1,000. Exhibit 1 illustrates the framework for today's proposal. BILLING CODE 6560-55-P [[Page 1549]] [GRAPHIC] [TIFF OMITTED] TP09JA98.001 BILLING CODE 6560-55-C [[Page 1550]] The framework for the proposal provides a significant degree of flexibility. The provisions for nationwide designation of construction and small municipal separate storm sewer systems in urbanized areas allow for a waiver of applicable requirements based on appropriate water quality conditions. The proposal would allow a permitting authority to waive otherwise applicable requirements for a regulated small municipal separate storm sewer system if the jurisdiction served by the system includes a population of less than 1,000 persons and meets additional water quality-based conditions. Water quality-based conditions would be the basis for a waiver of requirements of construction activities between 1 and 5 acres, as well. For construction sources, the rule would provide significant flexibility for waiving otherwise applicable regulatory requirements where a permitting authority determines, based on water quality and watershed considerations, that storm water controls are not needed. Coverage would extend to municipal and construction sources outside the nationwide designated classes or categories based on watershed and case-by-case assessments. For the municipal program, today's proposal would provide broad discretion to NPDES permitting authorities to develop and implement criteria for designating small municipal separate storm sewer systems outside of urbanized areas. Other storm water discharges from unregulated industrial, commercial, and residential sources would not be covered unless a permitting authority determines on a case-by-case, or categorical, basis that controls would be needed to protect water quality. EPA believes that the flexibility provided in today's proposed rule would facilitate watershed planning. 2. General Requirements for Regulated Entities Under Today's Proposal Today's proposal defines additional classes and categories of storm water discharges for coverage under the NPDES program. Those dischargers proposed to be regulated by today's proposed rule would be required to seek coverage under an NPDES permit. Furthermore, all NPDES-authorized States and Tribes would be required to implement these provisions and make any necessary amendments to current State NPDES regulations to ensure consistency with today's proposal. EPA would remain the NPDES permitting authority for States and Tribes without NPDES authorization. EPA proposes to regulate the remaining unregulated point sources of storm water under the NPDES permitting program for a variety of reasons, primarily programmatic, but also legal. The primary reason for regulating storm water under the NPDES program is for simplicity and predictability. EPA envisions a ``seamless'' program, particularly for regulating storm water discharges from municipal separate storm sewer systems, regardless of the relative size of the source. Forty-three jurisdictions (States and territories) administer the NPDES permit program, providing an opportunity for expeditious implementation of a comprehensive program to regulate storm water to protect water quality. The NPDES program is a comparatively mature regulatory program, and affected stakeholders are familiar with, if not accustomed to, how it operates. Regulations under the NPDES program are not enforceable against an affected entity until the effective date of a permit, thus providing an opportunity to identify particularized concerns and tailor permit conditions that are relevant and meaningful on an individualized basis. The NPDES permitting authority periodically reviews the NPDES permits to ensure that applicable requirements remain relevant and ensure adequate protection of receiving waters; CWA section 402(b)(1)(B) describes the 5-year permit term. In addition, NPDES permits are enforceable. Permittees, inspectors, and enforcement authorities understand the individualized permit obligations and, over the years, judicial precedents have established clear procedural standards for the enforcement of those obligations. The NPDES program also provides clear rules for citizen participation, not only in permitting and compliance monitoring, but also in enforcement. Legal considerations also affect the Agency's proposal to regulate the remaining unregulated storm water under the NPDES permitting program. When Congress enacted the point source storm water provisions of section 402(p) in 1987, it also enacted programs for control of nonpoint sources under section 319. The statute appears to suggest, therefore, that EPA should control point sources under section 402(p) with different, ``regulatory'' programs than the programs for controlling nonpoint sources under section 319. While EPA fully anticipates that States will provide ``reasonable assurances'' for the control of nonpoint sources in a timely and effective manner, such assurances are not yet fully developed in practice. Several States have enacted laws that prescribe State regulation in a manner that is ``more stringent'' than Federal regulation. While the CWA explicitly preserves the authority for States to enact ``more stringent'' regulations to control discharges, the Agency would be concerned that providing maximum flexibility for States to establish ``non-NPDES'' programs would leave regulatory authorities in many States in a quandary to determine whether or not programs they would design are more or less stringent than a Federal program. The NPDES program provides a useful and recognized standard in these instances. As noted earlier, the NPDES program has a proven record of reducing and eliminating pollutant discharges. The NPDES program also provides mechanisms to assure attainment and maintenance of water quality standards. Given that regulations under section 402(p)(6) are to regulate ``to protect water quality,'' the NPDES program provides a natural fit. Notwithstanding the preceding, however, the Agency recognizes the continuing imperative to assure that environmental regulations accomplish statutory objectives in the least burdensome and most cost-effective fashion. As explained further in this preamble, the form and substance of NPDES permits to address the sources designated in today's proposal would provide greater flexibility for the newly covered sources than the existing ``standard'' NPDES permit. Today's proposal would establish requirements for NPDES permitting authorities, regulated small municipal separate storm sewer systems, construction activities disturbing equal to or greater than 1 acre and less than 5 acres of land, and other discharges designated by the permitting authority based on local conditions. Today's proposal includes some new requirements for NPDES permitting authorities implementing the CWA section 402(p)(6) program. As noted above, EPA is making a significant effort to build flexibility into the program. At the same time, EPA is maintaining a level of national consistency, as appropriate. Permitting authorities would be required to generally ensure that the minimum requirements proposed today would be addressed by the regulated community (e.g., permitting authorities must ensure that permits issued to municipalities include the minimum control measures established under the program). Permitting authorities would also have the ability to make numerous decisions about the program including who is regulated under the program (e.g., case- [[Page 1551]] by-case designations and waivers), what the requirements are for regulated entities (e.g., waiving otherwise applicable provisions where certain conditions are met and developing a list of regionally appropriate, field-tested BMPs that it believes to be cost-effective), and what the allocation of responsibilities is between regulated entities. The rule proposes to extend the municipal storm water program to include the following: small municipal separate storm sewer systems within urbanized areas (with the exception of tribally-owned systems that serve less than 1,000 persons and any other system waived from the requirements by the NPDES permitting authority), small municipal separate storm sewer systems meeting the criteria (to be established by the permitting authority) for designation, and any municipal separate storm sewer system contributing substantially to the storm water pollutant loadings of a regulated, physically interconnected municipal separate storm sewer system. Small municipal separate storm sewer systems include municipal, Tribal, State, and Federal facilities and other systems located in an urbanized area that fall within the definition of a municipal separate storm sewer system. These would include, for example, State departments of transportation, universities, and military bases. Today's proposal would require all regulated small municipal separate storm sewer systems to develop and implement a storm water management program. Program components would include, at a minimum, measures to address requirements concerning public education and outreach, public involvement, illicit discharge detection and elimination, construction site runoff control, post-construction storm water management in new development and redevelopment, and pollution prevention and good housekeeping of municipal operations. These program components would be implemented through NPDES permits. A municipality would be required to submit to the NPDES permitting authority, either in its NOI or individual permit application, the BMPs to be implemented and the measurable goals for each of the minimum control measures listed above. The rule proposes to address all construction site activities involving clearing, grading and excavating land equal to or greater than 1 acre and less than 5 acres, unless requirements are otherwise waived by the NPDES permitting authority. Such sites, including construction site activities disturbing less than 1 acre of land that are designated by the permitting authority, would be required to implement requirements set forth in the NPDES permit, which may reference the requirements of a qualifying local program, issued to cover such sites. The rule also proposes to address certain other sources regulated under the existing program for storm water. For municipally owned industrial sources required to be regulated under the existing NPDES storm water program but exempted from immediate compliance by the Intermodal Surface Transportation Act of 1991 (ISTEA), the rule proposes to maintain the existing deadline for seeking coverage under an NPDES permit (August 7, 2001) (EPA is requesting comment on the possibility of covering such sources in a single storm water permit for the municipality as a whole. See section II.I.3. below.) The rule also proposes to provide relief from NPDES storm water permitting requirements for industrial and other sources that provide a written certification of ``no exposure of industrial materials and activities to storm water.'' 3. Integration of Today's Proposal With the Existing Storm Water Program In developing today's proposal, members of both the FACA Committee and the Storm Water Phase II FACA Subcommittee encouraged EPA to seek opportunities to integrate, where possible, the proposed Phase II requirements with existing Phase I requirements, thus facilitating a ``seamless,'' unified storm water program. EPA believes that this objective is met by using the NPDES framework. This framework is already applied to regulated sources under the existing NPDES storm water program and would be extended to those sources that would be designated under today's proposed rule. This approach would facilitate program consistency, public access to information, and program oversight. EPA believes that this proposal provides consistency in terms of program coverage and requirements for existing and newly proposed sources. For example, today's proposal would include most of the so- called donut holes--municipal separate storm sewer systems within urbanized areas that contain systems covered by the existing NPDES storm water program, but are not themselves addressed by the storm water program. In addition, the minimum controls required in today's proposal for regulated small municipal separate storm sewer systems would be very similar to a number of the permit requirements for medium and large municipal separate storm sewer systems under the existing storm water program. As proposed, permit requirements for all regulated municipal separate storm sewer systems (i.e., those under the existing program and those proposed today) would require implementation of BMPs. Furthermore, with regard to the development of permits to protect water quality, EPA intends to apply the August 1, 1996, Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits (hereinafter, ``Interim Permitting Approach'') (see Section II.L.1. for further description) to all municipal separate storm sewer systems covered by the existing and the proposed extension of the existing NPDES storm water program. EPA requests comment on the appropriateness of applying this approach to small municipal separate storm sewer systems regulated under this rule. EPA is planning to apply similar permit requirements to construction sites below 5 acres as are applied to those above 5 acres. A waiver provision applicable to certain circumstances is proposed. In addition, today's rule proposes to allow compliance with qualifying local, Tribal, or State erosion and sediment controls to meet the erosion and sediment control requirements of the general permits for construction both above and below 5 acres. 4. General Permits The proposal would recommend using general permits for all dischargers that would be covered under today's proposal. The use of general permits instead of individual permits reduces the administrative burden on permitting authorities, while also limiting the paperwork burden on regulated parties seeking permit coverage. Permitting authorities may, of course, require individual permits in some cases to address specific concerns, including permit noncompliance. While general permits are probably most appropriately issued on a watershed-wide basis for all storm water permittees designated in this proposal, the Agency strongly recommends that general permits for municipal sources, in particular, be issued on a watershed basis. Permit conditions contoured to a specific watershed could reflect an approved watershed plan, special provisions concerning program implementation (e.g., allocation of responsibilities among permittees), applicable water quality standards, including designated uses, and timing of [[Page 1552]] implementation. Alternatively, the Agency recommends that municipal general permits be issued to cover the regulated small municipal separate storm sewer systems within urbanized areas. If the permitting authority issues a State-wide general permit, the permitting authority may include separate conditions tailored to individual watersheds or urbanized areas. As discussed in Section I, today's proposed rule would provide an opportunity for regulated small municipal separate storm sewer systems to become co-permittees with municipal separate storm sewer systems covered under existing individual permits. EPA intends to consult with the Storm Water Phase II FACA Subcommittee in developing its general permits for the proposed program. The Agency would recommend that State NPDES permitting authorities use the EPA general permit as a guide in writing State-issued permits for newly regulated storm water sources. Furthermore, within the context of this rule, EPA intends to use the August 1, 1996, Interim Permitting Approach (see Section II.L.1. for further description) for sources regulated under the NPDES storm water program. 5. Tool Box During the FACA process, many Storm Water Phase II FACA Subcommittee representatives expressed an interest in having EPA develop a ``tool box'' to assist States, Tribes, municipalities, and other parties involved in the Phase II program. EPA made a commitment to work with Storm Water Phase II FACA Subcommittee representatives in developing such a tool box, with the expectation that a tool box would facilitate implementation of the storm water program in an effective and cost-efficient manner. EPA is committed to having a preliminary working tool box by the time the proposed rule is finalized in 1999; EPA intends to have the tool box fully operational at the time of the general permit. EPA also intends to update the tool box as resources and data become available. The tool box would most likely include the following six main components: fact sheets, guidances, an information clearinghouse, training and outreach efforts, technical research, and support for demonstration projects. In an attempt to avoid duplication, the Agency has undertaken an effort to identify and coordinate sources of information that relate to the storm water program from both inside and outside the Agency. Such information may include research and demonstration projects, grants, storm water management-related programs, and compendiums of available documents, including guidances, related directly or indirectly to the comprehensive NPDES storm water program. Based on this effort, EPA would develop a tool box containing fact sheets and guidance documents pertaining to the overall program and rule requirements (e.g., guidance on municipal and construction programs, and permitting authority guidance on designation and waiver criteria); models of current programs aimed at assisting States, Tribes, municipalities, and others in establishing programs; a comprehensive list of reference documents organized according to subject area (e.g., illicit discharges, watersheds, water quality standards attainment, funding sources, and similar types of references); educational materials; technical research data; and demonstration project results. The information collected by EPA will not only provide the background for tool box materials, but may also be included in, and made available through, an information clearinghouse. Due to cost concerns, EPA is still considering whether an information clearinghouse will be part of the tool box. EPA also intends to provide training workshops at the regional level with the expectation that the EPA regional offices then will assist States, Tribes, and municipalities with understanding the storm water program and will ensure that the regulated entities are aware of the availability of the tool box materials. EPA has many funding mechanisms currently available to support activities related to storm water. These mechanisms will be included in the tool box. Many activities funded under grants and loan programs include programs in the nonpoint source area, storm water demonstration projects, and wastewater construction projects. EPA has already provided funding for numerous research efforts in these areas, including a database of BMP effectiveness studies, an assessment of technologies for storm water management, a study of the effectiveness of storm water BMPs for controlling the impacts of watershed imperviousness, protocols for wet weather monitoring, development of a dynamic model for wet weather flows, and numerous outreach projects. EPA has entered into a cooperative agreement with the Urban Water Resources Research Council of the American Society of Civil Engineers (ASCE) to develop a scientifically-based approach and management tool for the information needed to evaluate the effectiveness of urban storm water runoff BMPs nationwide. The long-term goal of the project is to promote technical design improvements for BMPs and to better match their selection and design to the local storm water problems being addressed. The project team is collecting and evaluating existing BMP performance data, developing a BMP evaluation protocol, and designing and creating a database. Eventually the database will include the nationwide collection of information on the characteristics of structural and non-structural BMPs, data collection efforts (e.g., sampling and flow gauging equipment), climatological characteristics, watershed characteristics, hydrologic data, and constituent data. The database will continue to grow as new BMP data become available. The database software will be distributed by CD-ROM and will be accessible through the Internet. EPA and ASCE invite BMP designers, owners and operators to participate in the database development effort. To make this effort successful, a large database is essential. Interested persons are encouraged to submit their BMP performance evaluation data and associated BMP watershed characteristics for potential entry into the database. In addition, researchers planning to conduct BMP performance evaluations in the future are requested to compile and collect BMP reporting information according to a format being developed by ASCE. For more information, please contact Eric Strassler, EPA Engineering and Analysis Division, at 202-260-7150, e-mail: strassler.eric@epamail.epa.gov. EPA intends to promote research consistent with the Risk Management Research Plan for Wet Weather Flows prepared by EPA's Office of Research and Development. This plan supports the priority research questions and needs of the Office of Water. Finalized in November 1996, the plan will be updated annually. It includes strategic research directions and identifies active and proposed projects for supporting each research area. 6. Deadlines Established in Today's Proposal Exhibit 2 outlines the various deadlines proposed in today's rule. EPA believes that the dates proposed allow sufficient time for completion of both the NPDES permitting authority's and the permittee's program responsibilities. EPA requests comment on the appropriateness of the proposed deadline dates. [[Page 1553]] Exhibit 2.--Today's Proposed Rule Deadlines ---------------------------------------------------------------------------------------------------------------- Activity Deadline date ---------------------------------------------------------------------------------------------------------------- Proposed Rule Becomes Final............ 3/1/99. NPDES-Authorized States Modify NPDES 3/1/00. Program. NPDES-Authorized States Modify NPDES 3/1/01. Program if Statutory Change is Required. Permitting Authority Issues A Menu of 3/1/01. BMPs for Regulated Small Municipal Separate Storm Sewer Systems (MS4s). ISTEA Sources Submit Permit Application 8/7/01. Permitting Authority Issues General 3/1/02. Permit(s) (if this type of permit coverage is selected). Regulated Small MS4s Submit Permit a. 5/31/02. Application: a. If designated under Sec. b. 5/31/02. 122.32(a)(1) with 1990 Census as ``latest'' Census. b. If designated under Sec. c. Within 60 days of notice. 122.32(a)(1) with 2000 Census as ``latest'' Census (2000 Census calculations to be completed approximately by August 2001). c. If designated under Sec. d. Within 180 days of notice. 122.32(a)(2). d. If designated under Secs. 122.26(a)(9)(i) (C) or (D). Storm Water Discharges Associated With 5/31/02. Other Activity Submit Permit Application. Permitting Authority Designates Small 5/31/02 or 3/1/04 (if a watershed plan is in place). MS4s under Sec. 123.35(b)(2). Regulated Small MS4s' Program Developed 2007. and Implemented. Reevaluation of the Proposed Rule by 3/1/12. EPA. Permitting Authority Determination on a Within 180 days. Petition. Non-Municipal Sources Designated Under Within 180 days of notice. Sec. 122.26(a)(9)(i) (C) or (D) Submit Permit Application. Submission of No Exposure Certification Every 5 years. ---------------------------------------------------------------------------------------------------------------- B. Readable Regulations Today, EPA is proposing new regulations in a ``readable regulation'' format. This reader-friendly, plain English approach is a departure from traditional regulatory language and should enhance the rule's readability. These plain English regulations use questions and answers, ``you'' to identify the person who must comply, and ``must'' rather than ``shall.'' The legal implications of plain English are the same. The word ``must'' indicates a requirement. Words like ``should,'' ``could,'' or ``encourage'' indicate a recommendation or guidance. This new format, which minimizes the layers of subparagraphs, should also allow the reader to easily locate specific provisions of the regulation. Language within parentheses in today's proposal is intended as guidance. EPA requests comment on this new format and whether it provides sufficient distinction between legal obligations and EPA recommendations. Some sections of today's proposed regulation are presented in the traditional language and format because these sections are amending or changing existing regulations. The readable regulation format was not used in these existing provisions in an attempt to avoid any possible confusion or disruption of the flow of the regulations. C. Program Framework EPA interprets CWA section 402(p)(6) to provide broad discretion in establishing the structural framework for the designation of additional sources, as well as the program to regulate those sources. The Agency believes it has the authority to develop the section 402(p)(6) storm water program either as part of the existing NPDES permit program or as a stand alone non-NPDES program (i.e., through an ``authorization by rule'' approach). Under either approach, the Agency would interpret section 402(p)(6) as directing the Agency to publish regulations that ``regulate'' the remaining unregulated sources, specifically to establish requirements that are federally enforceable under the CWA. At the same time that Congress enacted section 402(p), it enacted CWA section 319. Section 319(b)(2)(B) refers to ``nonregulatory or regulatory programs for enforcement.'' The Agency interprets this distinction as relevant for the purposes of interpreting the term ``regulate'' in section 402(p)(6). The Agency has considered many options for the framework, as discussed in this section. The Agency also notes that, although input from the Storm Water Phase II FACA Subcommittee was instrumental in the development of today's proposal, the subcommittee was unable to reach consensus on the structural framework for implementation. 1. Today's Approach--The NPDES Program Approach As discussed in Section II.A, Overview, EPA sought to achieve certain goals in today's approach. EPA believes the best approach to meet these goals is through the use of the NPDES program. One of the specific goals that would be addressed through use of NPDES permits is equitable treatment of all municipal separate storm sewer systems within an urbanized area in order to solve the problem of donut holes. The existence of donut holes creates an equity problem because some similar discharges remain unregulated even though they cause the same water quality impacts. EPA believes that covering the unregulated discharges in these areas through the NPDES framework would provide the best method, given that this approach would cover urbanized areas under one single comprehensive and seamless regulatory program for storm water. For example, today's proposal would allow for a municipality to join as a co-permittee with a regulated municipality, referencing a common storm water management program (see Section II.H.3, Municipal Permit Requirements, for further discussion.) Similarly, construction activities under the existing storm water program and under today's proposed program covering 1 to 5 acres of disturbed land would be subject to essentially the same program requirements. The NPDES program approach, as proposed, is highly flexible in terms of a number of key provisions that would facilitate and promote watershed planning and sensitivity to local conditions. EPA made an intensive effort to include flexibility in today's proposed rule, and examples abound throughout the proposal. The following are some of the more significant examples of the flexible NPDES approach being proposed: using NPDES general permits for coverage of regulated sources on a watershed basis; incorporating qualifying local programs in NPDES permit requirements; selecting regionally appropriate BMPs [[Page 1554]] for municipalities; allowing minimum control measures to be implemented by another governmental entity; and allowing permitting authorities to waive otherwise applicable requirements for sources pursuant to watershed/TMDL assessments. Furthermore, EPA sought to accommodate State and Tribes seeking to coordinate the storm water program with other State and Tribal programs, including those that focus on watershed-based nonpoint source regulation. EPA believes that a flexible approach must be in balance with the need for the program to be enforceable and to hold the regulated community accountable for fulfilling program requirements. As such, a significant benefit of using an NPDES approach is that permits would be enforceable under the CWA. Another concern for EPA and several Storm Water Phase II FACA Subcommittee members was that the program ensures citizen participation. Currently, the NPDES approach ensures citizen participation throughout the permit issuance process, as well as in enforcement proceedings. In addition, the NPDES approach is suitable to cover all the sources that would be potentially regulated under CWA section 402(p)(6), including facilities owned or operated by Federal, State, or Tribal governments. Incorporating the section 402(p)(6) program into the NPDES approach capitalizes upon the existing governmental infrastructure for administration of the NPDES program. Moreover, much of the regulated community already understands the NPDES program and the way it works. Some stakeholders shared concerns that the NPDES approach was unnecessarily burdensome and costly. In response, EPA proposes modifications to and clarifications about the NPDES program. EPA shares some of the stakeholder concerns; other concerns are merely misperceptions. EPA envisions that NPDES permitting authorities would use general permits for the majority of discharges designated for regulation under the comprehensive program. General permits should help to minimize any administrative burden on NPDES permitting authorities and expedite permit coverage for dischargers. The Agency also proposes provisions that would recognize actions by States and their political subdivisions in determining compliance with permit requirements. For example, small municipalities could rely on efforts by States or neighboring municipalities to satisfy permit obligations. This flexibility would allow both the permittee/municipality and the State to minimize unnecessary duplication. Another example from today's proposal would be the incorporation by reference of existing programs with locally developed standards for pollutant controls into NPDES permits. This would be to the benefit of permittees who might otherwise be subject to duplicative requirements by different levels of government (local, State, and Federal.) 2. Alternatives Considered EPA considered a variety of alternative approaches to structure the proposed extension of the existing storm water program. Under the first option, EPA would develop a completely new non-NPDES regulatory system. Such an approach could include authorization of discharges ``by rule'' or some other type of permit program in which permits were not developed in the same way as NPDES permits. Under a second option, EPA would establish only a ``baseline'' scope of applicability for State and Tribal programs; the only nationally applicable EPA action would be the designation of sources. EPA would allow States and Tribes to use existing water pollution control programs (NPDES or otherwise) to regulate such designated sources. To the extent existing programs did not cover EPA's baseline program, States and Tribes would establish additional regulatory control mechanisms. A Storm Water Phase II FACA Subcommittee work group analyzed these approaches and provided valuable feedback to the Agency. A caucus of State representatives from the Storm Water Phase II FACA Subcommittee submitted a third option. Under their proposal, States and Tribes would have an option to develop an individual storm water management program. (As an alternative under this option, States and Tribes could choose to implement the program developed by EPA.) The individual State or Tribal storm water management program would use NPDES permits but would also rely on enforceable non-permit mechanisms (e.g., if EPA promulgated a regulation that ``deemed'' requirements under such non-permit mechanisms to be ``an effluent limitation or other limitation under CWA section 301''). Because section 402 is referenced in section 301(a), non-permit mechanisms developed by States according to the comprehensive program requirements of section 402(p)(6) would also constitute effluent limitations under section 301. Under the States' proposal, EPA would have to review and approve these programs to ensure that they provide for the same water quality results as those prescribed under the Federal program. Additionally, EPA would periodically evaluate the management plans and could require the State or Tribe to implement the Federal section 402(p)(6) program if the plan became inadequate. The State caucus representatives of the Storm Water Phase II FACA Subcommittee amplified this option in a discussion intended for inclusion in this preamble and for public comment thereon (see the next section entitled, State Alternative Program). EPA believes the alternative approaches could provide many of the same benefits discussed previously relating to today's proposal. Specifically, EPA believes that the options could be designed to provide adequate integration of the storm water programs, enforceability, accountability, public participation, and coverage of sources (e.g., facilities owned or operated by Federal, State, or Tribal governments). The alternative approaches might also provide opportunities to streamline the control mechanisms that the Agency has not yet evaluated. Furthermore, the storm water management program proposal allows States and Tribes the maximum amount of flexibility in tailoring the section 402(p)(6) program to address their specific environmental problems. The Agency does have some concerns about the alternative proposals, however. The alternatives establish new systems, which could cause a great deal of confusion. As explained previously, EPA is not yet aware of any such program currently in existence for regulation of storm water. None of the alternatives would provide any level of national consistency or predictability. This may be a special concern for industrial stakeholders operating in multiple States nationwide. The Agency has heard numerous concerns about inconsistencies in requirements from different jurisdictions. While today's proposed approach does not totally address this issue, the Agency at least attempts to establish a minimum program for ensuring a certain level of consistency nationwide. In addition, EPA believes it would be very difficult to determine whether a State or Tribe has developed an adequate individual program that provides the same level of substantive control. The process of approving these alternative programs to determine whether they provide an equivalent or better level of control could take a great deal of time and further delay controlling unregulated point source discharges that are causing an adverse impact on water quality. Furthermore, if a non-NPDES option was included in [[Page 1555]] the final rule, EPA would need to determine which, if any, programmatic requirements of 40 CFR parts 122 et seq. should be applicable to State non-NPDES programs. EPA believes it would need to address some of the State program requirements from existing regulations including conflicts of interest among governing bodies who approve permits (consistent with CWA section 304(i)(D)), requirements for enforcement authority and penalty provisions, confidentiality of permit application information, EPA review of and objection to State permits, public notice and public hearings for permit issuance, citizens appeal of final-issued permits, and citizen intervention in enforcement proceedings. These provisions are particularly important for ensuring adequate enforcement and public participation, as well as integrity and public confidence in the program. EPA seeks comment on how these issues could be addressed in a non-NPDES program. The Agency is seeking comment on today's proposal, as well as on the alternatives considered. Comment is further sought on whether a viable approach would be for EPA to adopt a State alternative approach for part of today's proposed storm water program. For example, were it to adopt a non-NPDES approach, EPA would need to determine what parts of the State's non-NPDES program could be submitted for EPA approval. It would seem that it is more prudent to specify particular parts of a storm water program, rather than the program in its entirety, as eligible for approval for a non-NPDES approach. Thus, a State or Tribe could propose a non-NPDES framework for the construction component (1 or more and less than 5 acres of disturbed land) of its storm water program. Likewise, a State or Tribe could propose a non-NPDES framework for storm water runoff from regulated small municipalities located outside of urbanized areas. Furthermore, another option could allow States or Tribes to seek approvability for a non-NPDES approach solely for sub-parts of the program, such as covering construction sites between 3 and 5 acres under an NPDES program, while covering between 1 and 3 acres in a non-NPDES program. In the municipal program, a non- NPDES program could be available for specific minimum control measures. EPA would like comment on these options for program approvability. a. State Alternative Non-NPDES Program State representatives on the Storm Water Phase II FACA Subcommittee have requested that EPA invite comment on an alternative program framework to be available to States in addition to the NPDES State storm water management program requirements in today's proposed rule. Today's proposal would rely on the NPDES permit program to establish a comprehensive program to regulate designated sources. EPA believes, however, that section 402(p)(6) is subject to an interpretation that would allow for a comprehensive program to regulate designated sources through a regulatory program other than the NPDES permit program (e.g., through authorization by rule). For a State to qualify for a non-NPDES approach, it would probably have to decide to take such an approach from the start, however. State representatives have suggested that a process be identified that would lead to the development of an alternative non-NPDES State storm water management program under CWA section 402(p)(6) for States wishing to take a more comprehensive approach than that of today's proposal. Under the States' proposal, States, Territories, and Tribes could elect either (1) to regulate the sources designated in today's proposal under the NPDES permit program according to the provisions of today's proposal (assuming the State, Territory, or Tribe is authorized to administer the NPDES program) or (2) to develop an alternate State storm water management program subject to public review and comment and Federal approval. The two major features of the alternative program are that it would be fully integrated into a State comprehensive water quality management program and it would include specific non-NPDES mechanisms for controlling storm water discharges. States would also have the option of employing some combination of the above. i. Alternative Overview. Similar to today's NPDES proposal, States under the alternative proposal would need to specifically identify how urban storm water management activities would be coordinated with other water quality management activities, such as nonpoint source management and TMDL development. In addition, as proposed, the State storm water management program would be developed with involvement of municipalities, industries, environmental groups, and other stakeholders, much like the current NPDES process. Also, as with the NPDES program, the alternative program would focus principally on environmental results, rather than on the administrative or planning process itself. States propose more opportunity for citizen involvement in the initial development and implementation of the overall alternative program than is currently envisioned by today's NPDES proposal. In comparison with today's NPDES proposal, the alternative might allow for less opportunity for citizen involvement in the details of requirements imposed on dischargers (than is afforded under NPDES permits). ii. State-Proposed Program Criteria. In seeking proposal of an alternative approach, State representatives on the Storm Water Phase II FACA Subcommittee have suggested criteria for EPA approval of an alternative State storm water management program. Such a program would be required: (1) To demonstrate that it would result in equivalent or better protection of water quality and designated uses (2) To provide assurances of implementation, including: a. Legal authorities of participating state and local agencies b. Resources to carry out implementation c. Enforceable mechanisms for implementation measures, including backup to voluntary measures (3) To identify equivalent or better timeframes for implementation (4) To allow equivalent or better public participation elements (5) To provide for management of the same types of facilities in an equivalent or better manner or provide for management of activities that would result in equivalent or better protection (6) To include objectives, measures, monitoring, and corrective action mechanisms adequate to assure that the program is being implemented and is effective Other substantive considerations would include, at a minimum, a description of the mechanism by which storm water sources are (or would be) regulated; a description of the opportunities for public participation, including in the development of regulatory and nonregulatory mechanisms and enforcement; and a statement about the legal authority of the State to administer such a program by an officer of the State who is competent to provide such a statement. In utilizing these criteria, the alternative program submission would cover, to at least the same extent, sources and related pollutants of concern designated in today's proposed rule (e.g., discharges from small municipal separate storm sewer systems [[Page 1556]] and from construction sites disturbing less than 5 acres, including opportunity for waiver provisions). For a State to qualify for approval of an alternative approach, the State program would need to cover additional wet weather sources not specifically designated in today's proposed rule as well. In addition, covered sources to be designated under today's proposal and other additional sources identified by the State alternative program would be expected to attain water quality standards, including designated uses. One area of flexibility that EPA foresees as a possibility under the alternative program relates to the minimum control measures required in today's NPDES proposal. Implementation of today's proposed minimum control measures in the alternative approach would not be necessary as long as the alternative program provided for control measures that addressed the same impacts to the same extent as today's proposed minimum control measures are intended to. iii. Proposed Procedure for Approval and Periodic Review. If the final rule were to allow States an option for an alternative State storm water management program, States envision the need for both a Federal approval procedure and periodic EPA review. States would need to invest time, energy, and resources at the outset to develop such alternative programs. More planning would be necessary for such a submission than would otherwise be expected under today's proposal. In addition, a State electing to develop an alternative storm water management program might be required to evaluate, revise, and update its water quality management program at fixed intervals. States envision that, EPA, in conducting such reviews, would seek comments from the community on the performance of the statewide storm water management program. State representatives believe that this approach would provide the public within a State with much more meaningful involvement at the program level than is normally achieved through the issuance of individual or general permits. iv. Proposed Procedure for Disapproval. State representatives have also suggested criteria for EPA use in the event that it becomes necessary to withdraw approval of a State storm water management program and require implementation of the federally prescribed NPDES program in today's proposed rule. They have proposed the following criteria: (1) The State has not implemented its program or has ceased implementation of the program; (2) The State is implementing its program, but the program is not effective in managing storm water from the same sources intended in the NPDES alternative; (3) EPA has notified a State of deficiencies in its program and the State has not corrected them within 6 months, or 2 years if statutory revisions are necessary. (EPA is not required to provide the State time to make statutory revisions if the State legislature has already removed the original necessary State statutory program authority.) EPA invites comment on the appropriateness of this alternative proposal. Specifically, comments are sought on the proposed alternative approval, review, and disapproval processes as they relate to requirements under 40 CFR Part 123. EPA invites comment on the appropriateness of these substantive criteria, including the appropriate level of specificity to ensure consistent application while providing States with flexibility, as well as the need for other substantive criteria. This would include enforceability of such an alternative to ensure equivalency or better protection of water quality as envisioned by the CWA and the need for national consistency in point source control requirements. EPA further invites comment on whether State processes for public participation would provide an adequate opportunity for input from regulated sources, as well as from the public in general. In addition, the States have proposed that an alternative program could utilize State efforts undertaken to comply with Part 130 regulations (40 CFR Part 130). Although EPA is not proposing to amend the Part 130 regulations, EPA invites comment on how the existing Part 130 regulations could support an enforceable alternative State program. For a more complete discussion of the Part 130 regulations, see Section II.L.2, Total Maximum Daily Loads, of today's preamble. 3. Permits Versus Non-Permits As noted previously, EPA proposes that the extension of the existing storm water program under section 402(p)(6) be administered as part of the NPDES permitting program (including the exemption for discharges associated with industrial activity composed entirely of storm water where there is ``no exposure'' to storm water). As such, the extension of the existing storm water program would be implemented through NPDES permits. NPDES permits are advantageous in many ways. As explained more fully in EPA's April 1995 guidance, Policy Statement on Scope of Discharge Authorization and Shield Associated with NPDES Permits (U.S. Environmental Protection Agency. July 1, 1994 (revised April 11, 1995). Memo: From Robert Perciasepe (Assistant Administrator for Water), Steven A. Herman (Assistant Administrator for Enforcement), and Jean C. Nelson (General Counsel) to Regional Administrators, Regarding ``Policy Statement on Scope of Discharge Authorization and Shield Associated with NPDES Permits.''), compliance with an NPDES permit constitutes compliance with the CWA (see CWA section 402(k)). Moreover, certain NPDES discharges qualify as ``federally permitted releases'' under section 101(10) of the Comprehensive Environmental Response, Compensation and Liability Act, also known as Superfund (see 42 U.S.C. 9601(10); 40 CFR 117.12). Additionally, permits generally require an application or a notice of intent to be covered. This information exchange assures communication between the permitting authority and the regulated community. This communication is critical in ensuring that the regulated community is aware of the requirements and the permitting authority is aware of potential impacts to water quality. The NPDES permitting process includes the public as a valuable stakeholder and ensures that the public is included and information is made publicly available. Furthermore, NPDES permits are enforceable under the CWA by citizens and Federal, State, and Tribal governments, thus ensuring adequate protection against adverse impacts on water quality. The Agency recognizes that using NPDES permits has some drawbacks. Issuing individual NPDES permits can be burdensome on permitting authorities and the regulated community. NPDES permits are only effective for 5 years. The time spent issuing permits could restrict resources to conduct public outreach, inspections, and enforcement. Commenters have noted that the application process is costly and confusing. To address a number of these problems, EPA encourages using general permits for the majority of sources to be designated under this proposal. NPDES general permits can cover a category of dischargers within a defined geographic area. Areas can be defined very broadly to include political boundaries (e.g., county), watershed boundaries, or State or Tribal land. Furthermore, EPA is working to streamline the permit [[Page 1557]] application/NOI process to reduce the burden on the regulated community. EPA is seeking comment on today's proposed approach. The Storm Water Phase II FACA Subcommittee work group that considered the structural framework for the extension of the existing storm water program under section 402(p)(6) also considered the appropriate legal mechanism for implementation. The subcommittee discussed numerous options and considered including self-implementing rules or ``permits-by-rule.'' A self-implementing rule would be a regulation promulgated at the Federal, State, or Tribal level. The basic principle would be that the rule would spell out the specific requirements for dischargers. The rule could impose the exact same restrictions and conditions as an NPDES permit, but generally would be effective until modified by EPA, a State, or a Tribe. EPA considered addressing the storm water program under section 402(p)(6) directly by rule instead of through a permitting program. This approach could reduce the burden on the regulated community (e.g., by not requiring permit applications). Although this approach would provide consistency across the nation, it would not address site-specific problems very well or foster coordination with authorized NPDES State programs. In discussing this option, some stakeholders raised enforcement issues and the ability of EPA, States, and Tribes to determine which discharges were subject to the program. Although EPA has several programs with self-implementing requirements (e.g., the sewage sludge program, Part 129 toxic standards under the NPDES program, and categorical standards under the pretreatment program), the Agency does not propose to take this approach under section 402(p)(6). The Agency does, however, seek comment on such an alternative. D. Federal Role Today's proposal describes EPA's approach to develop the extension of the existing storm water program under CWA section 402(p)(6). As in all other Federal programs, the Federal government plays an integral role in developing, implementing, overseeing, and enforcing the program. This section describes EPA's role in the revised storm water program. 1. Develop Overall Framework of the Program As discussed previously in the overview section, the storm water program under CWA section 402(p)(6) would consist of the rule, tool box, and permits. EPA's primary role would be to ensure timely development and implementation of all components. Today's proposal is a refinement of the first step in developing the program. EPA is fully committed to continuing to work with involved stakeholders on developing the tool box and issuing permits. As noted in today's proposal, EPA would be required to assess the municipal storm water program based on (1) evaluations of data from the NPDES municipal storm water program, (2) research of water quality impacts on receiving waters from storm water, and (3) research on BMP effectiveness. EPA will attempt to seek adequate resources, within annual budgetary constraints, to ensure that these evaluations, as well as the necessary research, can be completed. (Section II.H, Municipal Role, provides a more detailed discussion of this provision.) 2. Encourage Use of a Watershed Approach EPA is promoting an integrated approach that focuses on public and private sector efforts to address the highest priority problems within hydrologically defined geographic areas. Today's proposal offers flexibility for States and Tribes to use a watershed approach and should facilitate watershed planning on the part of States and Tribes implementing the program. Section I.H. discusses the watershed approach in more depth. 3. Provide Financial Assistance Another important role for the Federal government would be to assist financially in developing and implementing the storm water program under section 402(p)(6). EPA has no independent authority to establish a funding mechanism. Although Congress did not establish a fund to fully finance implementation of the proposed extension of the existing NPDES storm water program under section 402(p)(6), numerous Federal financing programs (administered by EPA and other Federal agencies) could provide some financial assistance. These programs include the CWA section 106 grant program, CWA section 104(b)(3) grant program, State surface and ground water management programs under the Safe Drinking Water Act, the environmental quality incentives program, the conservation reserve program, the wetlands reserve program, and the estuary management and Federal monitoring programs. Also, the Natural Resources Conservation Service (NRCS) has some grants available to assist in projects related to erosion and sediment controls. The Agency anticipates that some of these programs would provide funds to help develop and, in limited circumstances, implement the section 402(p)(6) storm water program. Because some Federal funds are only available for limited purposes, for example, nonpoint source control programs, and because section 402(p)(6) describes a program for controlling point source discharges of storm water, EPA solicits comment on suggestions on structuring the final rule to maximize opportunities for Federal financial assistance. 4. Implement the Program for Non-NPDES Authorized States, Tribes, and Territories Since today's proposed approach utilizes the NPDES framework, EPA would be the permitting authority for several States, Tribes, and Territories. As such, EPA would have the same responsibilities as any other NPDES permitting authority--issuing permits, designating additional sources, and taking appropriate enforcement actions--and would seek to tailor the storm water program to the specific needs of the State, Tribe, or Territory. EPA would also provide support and oversight, including outreach, training, and technical assistance to the regulated communities. See the discussions below related to the NPDES permitting authority's responsibilities for today's proposed rule provisions, and note that Section II.G. of today's preamble provides a separate discussion. 5. Oversee State Programs Under the NPDES program, EPA plays an oversight role for NPDES- approved States and Tribes. In this role, EPA and the States or Tribes work together to implement, enforce, and improve the NPDES program. Part of this oversight role includes working with States and Tribes to modify their programs where inadequacies exist. This role would be vitally important when States and Tribes make adjustments to develop, implement, and enforce the new section 402(p)(6) proposed extension of the existing NPDES storm water program. In addition, States maintain a continuing planning process (CPP) under section 303(e) of the CWA, which EPA periodically reviews to assess the program's achievements. In its oversight role, EPA takes action to address States and Tribes who have voluntarily sought NPDES authorization but are not fulfilling their obligations under the NPDES program. If an NPDES- authorized State or Tribe failed to implement an adequate NPDES storm water program, for example, EPA would enter into extensive discussions to [[Page 1558]] resolve outstanding issues. EPA has the authority to withdraw the entire NPDES program (partial program withdrawal is not allowed under the CWA) when resolution cannot be reached. EPA is also working with the States and Tribes to improve nonpoint source management programs and assessments to incorporate key program elements. Nonpoint source program elements can include protecting surface and ground water; establishing partnerships with public and private partners; using a balanced approach incorporating Statewide and watershed-abatement of existing impairments; preventing future impairments; developing processes to address both impaired and threatened waters; reviewing upgrades of all program components, including program revisions on a 5-year cycle; addressing Federal land management and activities inconsistent with State programs; and managing State/Tribal nonpoint source management programs. In addition, EPA has committed to help address nonpoint source pollution stemming from Federal lands and activities. In particular, EPA works with the States and Tribes to strengthen their nonpoint source pollution programs to address agricultural sources through the CWA section 319 program. EPA is working with other government agencies, as well as with community groups, to effect voluntary changes regarding watershed protection and reduced nonpoint source pollution. Through the FACA process, the Agency would continue to work with States to ensure that the requirements of the proposed extension of the existing storm water program under section 402(p)(6) are consistent with elements of the nonpoint source management program. In addition, EPA and NOAA have published programmatic and technical guidance to address coastal nonpoint source pollution. Under the existing coastal protection program, EPA and NOAA review State programs and provide technical and programmatic assistance to help the coastal States upgrade their Coastal Zone Management Programs. The Agency is committed to assisting States in identifying sources of funding to develop and implement State coastal nonpoint programs. 6. Comply With Applicable Requirements as a Discharger Today's proposal covers federally owned or operated facilities in a variety of ways. These facilities are generally areas where people reside, such as a Federal prison, hospital, or military base. These facilities could be included under the definition of a regulated small municipal separate storm sewer system, which specifically includes systems operated by the Federal facilities. For Federally owned regulated small municipal separate storm sewer systems, the proposal would require compliance with the application deadlines that apply to regulated small municipal separate storm sewer systems generally. EPA believes that all Federally owned municipal separate storm sewer systems would serve populations less than 100,000. We invite comment on the appropriateness of this assumption. Federal facilities could also be included under the section addressing storm water discharges associated with other activities, including construction. In any case, discharges from these government- owned facilities would need to comply with all applicable NPDES requirements and any additional water quality-related requirements imposed by a State, Tribal, or local government. Failure to comply could result in enforcement actions. Federally owned and operated facilities could act as models for municipal and private sector facilities and implement or test state-of-the-art management practices and control measures. E. State Role Today's proposal sets forth an NPDES approach for implementing the proposed extension of the existing storm water program under section 402(p)(6). The NPDES program is a voluntary federal program consistent with the principals of federalism. Because most States are approved to implement the NPDES program, they will tailor their storm water programs to address their water quality needs and objectives. Federally-recognized Tribes also have the opportunity to administer the NPDES program. Several Tribes are currently seeking NPDES authorization and, when approved, will also tailor the proposed extension of the existing NPDES storm water program to address their local needs and objectives. While EPA is proposing the basic framework for the section 402(p)(6) program, States and Tribes have an important role in fine- tuning the program to address the water quality issues within their jurisdictions. The basic framework would allow for adjustments based on factors that vary geographically, including climate patterns and terrain. Where States or Tribes do not have NPDES authority, they are not required to implement the storm water program, but they may still participate in water quality protection through participating in the CWA section 401 certification process (for any permits) and through development of water quality standards and TMDLs when authorized to do so. 1. Develop the Program In developing the proposed extension of the NPDES existing storm water program under section 402(p)(6), States and Tribes must evaluate whether revisions to their NPDES programs are necessary. If so, modifications must be made in accordance with Sec. 123.62. Under Sec. 123.62, States and Tribes must revise their NPDES programs within 1 year or 2 years if statutory changes are necessary. EPA believes this time period is appropriate for incorporating revisions to existing NPDES programs because the basic NPDES program already addresses storm water discharges from industrial and larger municipal sources. EPA is considering modifying the 1 year timeframe to 2 years or 3 years if statutory changes are required, where a State or Tribe has a fully developed and approved watershed program (including enforceable nonpoint source controls) by the end of the first year. EPA supports implementing the section 402(p)(6) proposed storm water program as part of a watershed approach (see more detailed discussion in previous section on watersheds) and believes it is appropriate to offer institutional incentives as encouragement. EPA is specifically seeking comment on this issue. A State or Tribal NPDES program must meet the requirements of section 402(b) or conform to the guidelines issued under section 304(i)(2) of the CWA. Today's proposal under Sec. 123.25 adds specific cross references to the section 402(p)(6) program components to ensure that States and Tribes adequately address these. Furthermore, EPA is proposing Sec. 123.35, which is discussed more fully in Section II.G, NPDES Permitting Authority's Role for the CWA section 402(p)(6) Municipal Program. In tailoring the proposed extension of the existing NPDES storm water program to accommodate their needs, States and Tribes should coordinate and utilize the data collected under several programs, including water quality management programs, TMDL programs, and water quality monitoring programs. All States and Tribes have water quality standards that consist of designated uses, criteria, an antidegradation policy, and other implementation policies and procedures. Water quality management programs are geared to achieving these goals and must be updated every 3 years. In addition, States are required to submit a prioritized ranking of waters [[Page 1559]] requiring TMDLs. (See Sections II.L.1 and II.L.2 for more information on water quality standards and TMDLs, respectively) States and interstate agencies monitor for contaminants in ambient water, fish tissue, and specific point sources. In addition, they conduct intensive monitoring in watersheds (or at specific sites within a watershed) to develop efficient control strategies for point and nonpoint sources. CWA section 305(b) Reports summarize this information and must be submitted to EPA every 2 years. It is critical that States and Tribes evaluate existing monitoring programs, revise them as needed to ensure that meaningful data are being collected, and share information with the local communities. (See Section II.L.4 for additional information on monitoring.) 2. Comply With Applicable Requirements as a Discharger Today's proposal would cover State or Tribally owned or operated separate storm water systems in a variety of ways. These systems generally drain areas where people reside, such as a prison, hospital, or other populated facility. These systems could be included under the definition of a regulated small municipal separate storm sewer system, which specifically includes systems operated by State departments of transportation. Alternatively, they could be included under the section addressing storm water discharges associated with other activities, including construction. In any case, discharges from these government- owned facilities would need to comply with all applicable NPDES requirements. Failure to comply could result in enforcement actions. State or Tribal facilities could act as models for municipal and private sector facilities and implement or test state-of-the-art management practices and control measures. 3. Communicate With EPA Under approved NPDES programs, States and Tribes have an ongoing obligation to share information with EPA on a periodic basis. This dialogue is particularly important in the section 402(p)(6) storm water program where these governments continue to develop a great deal of the guidance and outreach related to water quality. EPA would continue to use the FACA process in developing materials related to the section 402(p)(6) program and input from States and Tribes throughout this process would be critical. F. Tribal Role 1. Background a. EPA's Indian Policy EPA is committed to the nine principles outlined in its 1984 Indian Policy, which include working with Tribes in a government-to-government relationship, recognizing Tribal sovereignty, and dealing with the Tribal government as the primary party for decisionmaking and management of environmental issues on the Indian reservations, consistent with EPA standards and regulations (U.S. Environmental Protection Agency, American Indian Environmental Office. 1996. Working Effectively With Tribal Governments. Participant Manual, Interim Final, U.S. EPA Training Seminar). EPA has affirmed and carried forward its commitment to the 1984 Indian Policy in many ways. In this regard, on March 14, 1994, EPA established the American Indian Environmental Office and Tribal Operations Committee. EPA believes that the approach in today's proposal is consistent with the principles of the policy. Further, today's proposal has been developed with the participation of the EPA Indian Office, noted above. In addition to storm water, the 1987 CWA amendments specifically focus on ``Indian Tribes.'' Under section 518, EPA may treat Indian Tribes in the same manner as States for the purposes of certain provisions of the CWA, including section 402 (National Pollutant Discharge Elimination System) and section 303 (water quality standards and implementation plans). Section 518(e) establishes a number of criteria for the treatment of an Indian Tribe in the same manner as a State. These criteria are discussed in a Federal regulation regarding Tribal eligibility for administering NPDES and State sludge management programs (see 58 FR 67966, December 22, 1993; see also 59 FR 64339, December 14, 1994). Upon meeting the criteria, a Tribe seeking authorization to administer one of the CWA water quality programs would acquire Treatment in the Same Manner as a State status for that program. Under EPA's final regulation, the Tribe's water quality or sludge management program authority could extend to lands within a ``Federal Indian reservation.'' The CWA section 518(h)(1) uses the term ``Federal Indian reservation'' to define the territorial limits for Tribal authority for CWA purposes. The preambles to EPA regulations, including NPDES program regulations, more fully explain the term Federal Indian reservation. Most notably, EPA has clarified that it considers ``trust lands,'' which were validly set apart for the use of Indians, to be ``within a reservation'' for purposes of the CWA (e.g., 58 FR 67970). Once authorized as the permitting/program authority, a Tribe (instead of EPA) may operate the NPDES and sludge management programs on its reservations. Otherwise, EPA is generally the permitting/program authority within Indian country. In any case, the Tribe may also seek authority to operate a CWA section 303 water quality standards program. Tribes with approval to operate a CWA section 303 water quality standards program may also issue certifications under CWA section 401. b. Existing NPDES Regulations for Storm Water The existing NPDES regulations for storm water discharges associated with industrial activities extend coverage to private, State, and federally owned industrial facilities located on Indian reservations. Further, the NPDES regulations cover industrial facilities owned or operated by a Tribe with a population of more than 100,000 people within the reservation and cover all Tribally owned or operated airports, power plants, and uncontrolled sanitary landfills. The NPDES regulations for storm water associated with industrial activity established October 1, 1992, as the deadline to apply for NPDES permit coverage. EPA issued baseline NPDES storm water general permits covering industrial and construction activities in September 1992 and a multisector NPDES storm water general permit covering a number of industrial categories in September 1995, as revised. Many industrial facilities covered under the NPDES regulations for industrial activities, including construction, and located on Indian reservations are included in the applicability sections of these general permits and can seek general permit coverage for satisfying program requirements. Existing storm water permit application regulations address storm water discharges from large and medium municipal separate storm sewer systems (Sec. 122.26(a)(1)). Regulations at Sec. 122.2 define the term ``municipality'' to include ``an Indian Tribe or an authorized Indian Tribal organization.'' Consequently, the criteria used by the NPDES permitting authority for coverage of municipal dischargers extends to separate storm sewer systems that are Tribally owned or operated. At this time, no Indian reservations are covered under the existing municipal [[Page 1560]] NPDES storm water program. Thus, the appendices to the definitions of large and medium separate storm sewer systems (Part 122, Appendices F- I) list no reservations for automatic coverage. Likewise, EPA has not yet designated an Indian reservation for coverage based on other factors to be considered under CWA section 402(p)(2)(E). 2. Today's Proposal The current proposed regulation for the extension of the existing NPDES program for storm water would cover two types of dischargers located on reservations. First, the proposal would designate storm water discharges from any regulated small municipal separate storm sewer system, including Tribally owned or operated systems. Second, the proposal would regulate discharges associated with construction activity disturbing between one and five acres of land, including sites located on reservations. Owners or operators in each of these categories of regulated activity would need to apply for coverage under an NPDES permit within 3 years and 90 days from the date of publication of the final rule. Under existing regulations, however, EPA or an authorized NPDES Tribe may require a specified storm water discharger to apply for NPDES permit coverage before this deadline based on a determination that the discharge is contributing to a violation of a water quality standard (including designated uses) or is a significant contributor of pollutants. Under this proposal, a Tribal governmental entity may regulate storm water discharges on its reservation in two ways--as either an NPDES-authorized Tribe or a regulated ``municipality.'' If a Tribe is already authorized to operate the NPDES program, EPA would require the Tribe to implement today's proposed regulations for the NPDES program for storm water, as it does for authorized States, for covered dischargers located on the Indian reservation. (As discussed above, a Tribe may seek NPDES authorization from EPA to operate the NPDES program in the same manner as a State.) For an outline of the role and responsibilities of the permitting authority in the storm water program, see the proposed Sec. 123.35 (and Section II.G. of today's preamble) and existing Sec. 123.25(a). Under today's proposed rule, a Tribe would be a regulated ``municipality'' for NPDES program purposes in two ways, and, therefore, be required to implement the six minimum control measures to the extent allowable under Federal law. (EPA recognizes that tribal regulation of non-members on fee lands within Federal Indian Reservations raises complex legal questions. See 58 FR 67966 and 59 FR 64339. Thus, the Agency invites comment that would assist the Agency in developing final rule language to recognize that Tribes with MS4s proposed for regulation under today's proposal would only need to implement the municipal measures proposed in section 122.34 to the extent such Tribes have authority under federal Indian law.) If the Indian reservation were located within an ``urbanized area,'' as defined in Sec. 122.32(a)(1) of today's proposed rule, the Tribe could be an owner or operator of a regulated small municipal separate storm sewer system (only the urbanized area portion of the reservation would be regulated under an NPDES permit). As discussed below, Tribal owners or operators of regulated small municipal separate storm sewer systems--serving a population under 1,000 within the urbanized area portion of the reservation--would be exempted from the proposed storm water regulation. Tribes located outside an urbanized area would not automatically be covered, but would be able to request designation as a regulated small municipal separate storm sewer system from EPA. EPA believes that only a few Tribes located in urbanized areas would meet the criteria to be regulated small municipal separate storm sewer systems. The Tribal representative on the Storm Water Phase II FACA Subcommittee asked EPA to provide a list of the Tribes located in urbanized areas that would fall within the NPDES storm water program under today's proposal. In December 1996, EPA developed a listing of federally recognized American Indian Areas located in Bureau of the Census-designated urbanized areas (see Appendix 1). Appendix 1 not only provides a listing of reservations and individual Tribes, but also the name of the particular urbanized area in which the reservation is located and an indication of whether the urbanized area contains a medium or large municipal separate storm sewer system that is already covered by the existing storm water regulations (``Phase I''). There are 27 Tribes on this list; 20 are outside of Oklahoma and 7 are in Oklahoma. EPA recognizes that the list could have errors and invites comment on its accuracy. The applicability of CWA section 518 to Tribes located in Oklahoma would be determined on a case-by-case basis because of unique historical and legal considerations particular to that State. In authorization of the Oklahoma NPDES program, EPA retained jurisdiction to regulate discharges in ``Indian Country'' (61 FR 65049, December 10, 1996). In the cases of the 20 Tribes outside of Oklahoma, Tribal populations within urbanized areas range from very small numbers to more than 32,000. In the case of the seven Oklahoma Tribes, the population numbers are much larger. It is unlikely, however, that large populations fall within areas that would be determined to be an Indian reservation, as defined in section 518. In the cases of the 20 Tribes outside of Oklahoma, 9 Tribes have populations less than 1,000 and, thus, would be waived from proposed requirements for the municipal program. Eight Tribes have a population between 1,000 and 10,000, and 3 have a population above 10,000. As mentioned previously, EPA proposes to exempt from the proposed municipal program those Tribally owned small municipal separate storm sewer systems in urbanized areas that serve populations equal to or less than 1,000 persons. As a practical matter, EPA believes that it may be unlikely that a Tribe with such a small population would have the technical, administrative, and governmental capability, including the staff, to implement a storm water management program. Unlike similarly situated political subdivisions of States, these Tribes in urbanized areas lack the opportunity for support from States. Moreover, EPA anticipates that a Tribe of this size might consider cooperative arrangements with surrounding local governmental entities regarding storm water program implementation. The nine exempt Tribes in urbanized areas (populations below 1,000) include: Augustine Band of Cahuilla Mission of Indians of the Augustine Reservation, CA. Cabazon Band of Cahuilla Mission of Indians of the Cabazon Reservation, CA. Redding Rancheria of California. Seminole Tribe of Florida, Dania, Big Cypress and Brighton Reservations. Penobscot Tribe of Maine. Shakopee Mdewakanton Sioux Community of Minnesota (Prior Lake). Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, NV. Reno-Sparks Indian Colony, NV. Ysleta del Sur Pueblo of Texas. These nine Tribes in urbanized areas would not be subject to permit requirements under today's proposal, unless EPA subsequently and specifically designated the discharges from their storm water systems as a water quality problem. It is important to note that this is a preliminary list of exempted Tribes--it may be the case that additional tribally-owned small [[Page 1561]] municipal separate storm sewer systems would be eligible for the exemption based on the population in the portion of the reservation that is located within the urbanized area. EPA seeks comment on any additional Tribes listed in Appendix 1 that may qualify for this proposed exemption. Outside of urbanized areas, non-authorized Tribes would be subject to potential designation by EPA based on the criteria established for designating all other small municipal separate storm sewer systems. A Tribe not otherwise covered by the proposed extension of the existing NPDES storm water program would also be able to request designation for coverage by EPA. In both cases, a Tribe would need to comply with all terms, limitations, and conditions of the applicable municipal NPDES permit. EPA designation and NPDES permit coverage would allow a Tribe to operate a federally recognized ``municipal'' storm water management program and extend Federal recognition to requirements the Tribe would place on dischargers of storm water into the Tribe's separate storm sewer system. This federal regulation could result in federal enforcement of the Tribal program. Moreover, the designation for NPDES coverage would provide an opportunity for a Tribe to enhance its role in the regulation of storm water discharges within its reservation without having to undertake the entire NPDES program and its existing requirements. During the public comment period following today's proposal, EPA plans to notify each of the Tribes in urbanized areas that are or may be impacted by this proposed regulation and will engage in a discussion of the impact of the regulation on these Tribes. EPA invites comment regarding the appropriateness of its approach to Tribes in urbanized areas, specifically the proposed exemption for Tribal municipal separate storm sewer systems serving populations under 1,000 people. 3. Other Relevant Issues During the Storm Water Phase II FACA Subcommittee process, the Tribal representative asked how EPA would apply the NPDES program with respect to non-federally recognized Indian reservations and Tribes. At present, EPA interprets section 518 of the CWA as applying only to federally recognized Tribes and Indian reservations and as not applicable to non-federally recognized Indian reservations and Tribes. EPA regional offices will deal with this issue on a case-by-case basis when it is brought to their attention. In addition, a State representative requested EPA to clarify the meaning of ``ownership of a Tribal municipal separate storm sewer system.'' In response, EPA notes that an Indian tribe or an authorized Indian Tribal organization is a municipality under section 502(4) of the CWA, unless a Tribe is treated as a State under section 518(e) of the CWA. ``Indian Tribe'' means any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation. G. NPDES Permitting Authority's Role for the CWA Section 402(p)(6) Municipal Program As noted previously, the NPDES permitting authority can be EPA or an authorized State or an authorized Tribe. For clarity, the following discussion describes the role of the NPDES permitting authority under today's proposal. 1. Comply With Other Requirements NPDES permitting authorities would need to perform certain duties to implement the CWA section 402(p)(6) program. EPA is proposing Sec. 123.35(a) to emphasize that permitting authorities have existing obligations under the NPDES program with which they must comply. Section 123.35 focuses on specific issues related to the role of the NPDES authority to support administration and implementation of the municipal storm water program under CWA section 402(p)(6). 2. Designate Sources A new Sec. 123.35(b) addresses the requirements for the NPDES permitting authority to designate sources of storm water discharges to be regulated under Secs. 122.32 through 122.36 of today's proposed rule. NPDES permitting authorities would be required to develop a process, as well as criteria, to designate municipal sources and the authority to designate a small municipal separate storm sewer system where the otherwise applicable requirements have been waived under proposed Sec. 122.33(b) if circumstances change. EPA is proposing that EPA may make designations if an NPDES-approved State or Tribe fails to do so. NPDES permitting authorities could also designate areas that should be included in the storm water program (as regulated small municipal separate storm sewer systems) but are not located in an ``urbanized area'' and, therefore, would not be designated automatically. Such areas would be brought into the program if found to have actual or potential exceedances of water quality standards, including impairment of designated uses, or other adverse impacts on water quality, as determined by local conditions or watershed and TMDL assessments. EPA's aim is to address adversely impacted areas while protecting areas with the potential for problems. EPA encourages NPDES permitting authorities, local governments, and the interested public to work together in the context of a watershed plan to address water quality issues, including those associated with municipal storm water runoff (see Section I.H. of today's preamble for further discussion). a. Develop Designation Criteria Under a new Sec. 123.35(b), the NPDES permitting authority would need to establish designation criteria to evaluate whether a storm water discharge results in or has the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts. These criteria would need to be applied to all municipal separate storm sewer systems located outside of an urbanized area with a population of at least 10,000 and a population density of at least 1,000. EPA estimates a total of 583 incorporated places and 2 municipios in Puerto Rico (Arroyo and Fajardo) fall within this 10,000 population/1,000 density subset and would need to be examined for potential designation. EPA would recommend that the NPDES permitting authority consider, in a balanced manner, certain locally-focused criteria for designating any incorporated place, county, or place under the jurisdiction of a governmental entity located outside of an urbanized area on the basis of other significant water quality impacts. EPA proposes to recommend consideration of criteria that would include discharge to sensitive waters, high growth or growth potential, high population density, contiguity to an urbanized area, significant contributor of pollutants to waters of the United States, and ineffective control of water quality concerns by other programs. The proposed designation criteria are intended to help encourage the permitting authority to use an objective method for identifying and designating, on a local basis, sources that adversely impact water quality. Discharge to sensitive waters: The potential impacts of storm water runoff depend, in part, on the sensitivity of the receiving waters. For example, cold water fisheries, such as trout streams, show greater levels of impairment from [[Page 1562]] poor erosion and sediment control programs than do other fisheries that are less dependent on the stream substrate. EPA recommends that permitting authorities identify, in coordination with Federal, State, and local agencies, and perhaps prioritize, designations with regard to the sensitivity of the resource. Sensitive waters generally include public drinking water intakes and their designated protection areas; swimming beaches and waters in which swimming occurs; shellfish beds; designated Outstanding National Resource Waters; National Marine Sanctuaries; waters within Federal, State, and local parks; and waters containing threatened or endangered species and their habitat, as well as other waters so designated. High growth or growth potential: To protect watersheds and their receiving waters from nearly certain adverse impacts, EPA proposes to recommend that areas of high growth or growth potential should also be identified and included in the designation criteria. Using this factor could minimize future restoration or retrofitting costs. Growth potential can be measured in various ways, including projected building starts, comprehensive plans, zoning maps, bond ratings, and the condition of infrastructure and building vacancies. EPA would recommend that, for any given 10-year period, discharges from municipal separate storm sewer systems in areas with localized population growth rates of more than 10 percent should be evaluated for designation. Members of the Storm Water Phase II FACA Subcommittee questioned whether a 1 percent threshold (10 percent over a 10-year period) for ``high'' growth was reasonable. According to EPA calculations based on Census data from 1980 to 1990, the average rate of growth in the United States during that 10-year period was more than 4 percent. For the same period, the average rate of growth within urbanized areas was 15.7 percent and the average for outside of urbanized areas was just more than 1 percent. EPA believes that these calculations help to support the statement that a growth percentage that is more than 10 times the national average for areas outside of urbanized areas is indeed a high rate of growth for these areas and should be a basis for designation of municipal storm water systems. High population density: Population density is related to the level of human activity, which has been shown to be directly linked to levels of impervious land surfaces. Therefore, EPA recommends ``high population density'' as one criterion for designation of municipal sources. Even areas with relatively low population densities (i.e., less than two residential units per acre) can have 10 to 20 percent impervious area (Schueler, T. 1987. Controlling Urban Runoff: A Practical Manual for Planning & Designing Urban BMPs. Metropolitan Washington Council of Governments). Macroinvertebrate diversity becomes poor when impervious land exceeds 10 to 15 percent (Klein, 1979). Since this study, extensive research from around the country has found this threshold to be consistent with other studies (Schueler, T. 1995. Environmental Land Planning Series: Site Planning for Urban Stream Protection. Prepared for Metropolitan Washington Council of Governments.). Further, higher density residential areas (i.e., two to ten residential units per acre) have been correlated with as much as 35 percent imperviousness. By recommending this criterion, EPA does not aim to encourage lower density development and urban sprawl but rather good urban design and development patterns. Contiguity to an urbanized area: The areas closely outside of an urbanized area have a good potential for future growth and may also have significant impacts on a neighboring regulated municipality that is within the urbanized area. This designation criterion would allow for an extension of the seamless coverage provided by the regulation of urbanized areas where necessary. The proposed rule also captures this concept in Sec. 123.35(b)(4). Significant contributor of pollutants to waters of the United States: This criterion is one of the basic tenets of designation and is meant to capture all significantly contributing sources in an effort to have both comprehensive and equitable coverage (see CWA section 402(p)(2)(E), 40 CFR 122.26(a)(5)). It also aids in developing a watershed approach. Ineffective control of water quality concerns by other programs: EPA proposes to recommend that NPDES permitting authorities carefully consider whether the storm water runoff from a potentially designated area is effectively addressed under other regulations or programs, such as CZARA and other nonpoint source programs. For example, an area covered under the National Estuary Program (NEP) under CWA section 320 is required to develop a Comprehensive Conservation and Management Plan (CCMP) for managing the estuarine watershed. The CCMP addresses three general resource areas: water and sediment quality, living resources, and land use and water resources. The permitting authority could determine that the NEP comprehensively addresses impacts to water quality from storm water discharges for certain systems and, therefore, the systems would not need to be designated under the CWA section 402(p)(6) program. These criteria are meant to be taken in the aggregate, with a great deal of flexibility as to how each would be weighed in order to best account for watershed and other local conditions and to allow for a more tailored case-by-case analysis. The application of criteria is meant to be geographically specific. Furthermore, each criterion does not have to be met in order for the owner or operator of a small municipal separate sewer system to qualify for designation, nor would a system necessarily be designated on the basis of one or two criteria alone. EPA plans to provide comprehensive guidance to more fully develop its recommendations for appropriate criteria, as well as offer detailed information on how the criteria could be applied and what standards could be used. EPA seeks comment on additional designation criteria, as well as the validity and applicability of the proposed criteria. EPA believes that the application of the recommended designation criteria, when considered as a composite, would provide an objective indicator of real and potential water quality impacts from urban runoff on both the local and watershed levels. EPA encourages the application of the recommended criteria in a watershed context, thereby allowing for the evaluation of the water quality impacts of the portions of a watershed outside of an urbanized area. For example, situations exist where the urbanized area represents a small portion of a degraded watershed, and the adjacent nonurbanized areas of the watershed have significant cumulative effects on the quality of the receiving waters. b. Apply Designation Criteria After customizing the designation criteria for local geography, the permitting authority would have to apply such criteria, at a minimum, to any incorporated place, county, or place under the jurisdiction of a governmental entity (including but not limited to Tribal or Territorial governments) located outside of an urbanized area that has both a population of at least 10,000 and a population density of 1,000 people per square mile or greater (see proposed Sec. 123.35(b)(2)). If the NPDES permitting authority determines that the place or county meets the criteria, they would need to designate all small municipal separate storm sewer systems [[Page 1563]] located in the place or county as regulated small municipal separate storm sewer systems under the NPDES storm water program within 3 years and 90 days of publication of the final rule. Alternatively, the NPDES authority could designate within 5 years from the date of final regulation if the designation criteria are applied on a watershed basis where a comprehensive watershed plan exists (a comprehensive watershed plan is one that includes the equivalents of TMDLs) (see proposed Sec. 123.35(b)(3)). The Agency seeks to provide incentives for watershed-based designations. The timeframe of 3 years and 90 days would allow States and Tribes up to 2 years to make any necessary statutory changes and receive program approval from EPA, an additional year to develop their general permit and designation criteria, and then 90 days for a regulated entity to submit its individual application or Notice of Intent (NOI) under a general permit. Assuming a March 1, 1999, final rule, the resulting deadline would be May 31, 2002. EPA believes this would be an adequate timeframe and would provide significant guidance to NPDES permitting authorities on the responsibilities to be completed during this period. If an NPDES-authorized State or Tribe does not develop and apply designation criteria, then EPA might do so. EPA believes it has adequate authority to apply a State's designation criteria (or to develop and apply designation criteria) to designate sources in an authorized NPDES State. Such authority would derive from the text of section 402(p)(6), which provides for the designation of sources other than those already regulated under section 402(p)(2). EPA does not believe that section 402(c)(1), which requires EPA to suspend issuance of Federal NPDES permits in an authorized State, would preclude EPA designation of particular small municipal separate storm sewer systems (based on subsequently-developed criteria applicable in a particular State) after promulgation of today's proposed rule because designation of sources is independent of (and precedes) the issuance of permits. In addition, as discussed later in Section II.I.4. entitled, Residual Designation Authority, EPA believes that section 402(p)(6) provides the Agency with authority to subsequently designate individual sources under today's proposed rule. Today's approach for designation by EPA, even in authorized NPDES States, would also be consistent with the authority currently available to the Agency under the existing storm water regulations at 40 CFR 122.26(a)(1)(v). Similarly, the third party petition process for small municipal separate storm sewer systems (including expeditious deadlines for acting on such petitions) is consistent with the existing storm water regulations at 40 CFR 122.26(f) (4) & (5). EPA solicits comment on the proposed designation approach. It is important to note that NPDES permitting authorities could designate any owner or operator of a municipal separate storm sewer system, including one below 10,000 in population and 1,000 in density. EPA established the 10,000/1,000 threshold primarily for prioritization purposes based on the likelihood of adverse water quality impacts at these population and population density levels. In addition, the 1,000 persons per square mile threshold is consistent with both the Bureau of the Census definition of an ``urbanized area'' (see Section II.H.2. below) and a Storm Water Phase II FACA Subcommittee work group's discussion concerning the definition of a regulated small municipal separate storm sewer system. EPA has considered the request from some Storm Water Phase II FACA Subcommittee members that interim deadlines be established for development of designation criteria and believes that the designation deadline identified in today's proposed rule at Sec. 123.35(b)(3) provides States and Tribes with a flexibility that allows them to develop and apply the criteria locally in a timely fashion, while at the same time establishing an expeditious deadline. c. Designate Physically Interconnected Municipal Separate Storm Sewer Systems In addition to applying criteria on a local basis for potential designation, the NPDES permitting authority would be required to designate any owner or operator of a municipal separate storm sewer system that contributes substantially to the storm water pollutant loadings of a physically interconnected municipal separate storm sewer system that is regulated by the NPDES storm water program (see proposed Sec. 123.35(b)(4)). To be ``physically interconnected,'' the municipal separate storm sewer system, including roads with drainage systems and municipal streets, of one entity would be physically connected directly to the municipal separate storm sewer system of another entity. This provision would apply to all municipal separate storm sewer systems located outside of an urbanized area. EPA added this section in recognition of the concerns of local government representatives on the Storm Water Phase II FACA Subcommittee that a local government should not have to shoulder total responsibility for a storm water program when storm water discharges from another municipality are also contributing pollutants or adversely affecting water quality. This provision would also help to provide some consistency among municipalities and facilitate watershed planning in the implementation of the NPDES storm water program. EPA recommended physical interconnectedness in the existing NPDES storm water regulations as a factor for consideration in the designation of additional sources. The municipal caucus raised an additional concern relating to sheet runoff from one adjoining jurisdiction to another, thereby contributing to the discharges of a neighboring municipal separate storm sewer system. EPA would like comment on the extent to which this problem may exist and ways in which it could be addressed. EPA also welcomes comment on this proposed designation provision. Today's proposal does not include interim deadlines for identifying physically interconnected municipal separate storm sewer systems. EPA believes that this determination would occur on a case-by-case basis where deadlines would only work to limit the permitting authority's ability to identify such systems. However, in accordance with the deadlines identified in Sec. 123.35(b)(3) of today's proposal, EPA encourages the permitting authority to make that determination within 3 years from the date of publication of the final rule or within 5 years if the permitting authority is implementing a comprehensive watershed plan. Alternatively, the affected jurisdiction could use the petition process under 40 CFR 122.26(f) in seeking to have the permitting authority designate the contributing jurisdiction. d. Address Public Petition for Designation Today's proposal would recognize the existing opportunity for the public to petition the permitting authority for designation of a point source to be regulated to protect water quality, as contained in existing NPDES regulations (see 40 CFR 122.26(f)). Any person may petition the permitting authority to require an NPDES permit for a discharge composed entirely of storm water that contributes to a violation of a water quality standard or is a significant contributor of pollutants to the waters of the United States (see proposed Sec. 123.35(c)). NPDES permitting authorities would have to make a final [[Page 1564]] determination on any petition within 180 days after receiving the petition (see proposed Sec. 123.35(c)). EPA believes that setting a limit of 180 days balances the public's need for a final determination within a finite period of time and the NPDES permitting authority's need to control its workload. EPA is also proposing that if an NPDES- approved State or Tribe fails to act within the 180-day timeframe, EPA may make a determination on the petition. EPA believes that public involvement is an important component of the NPDES program for storm water and feels that this provision encourages public participation. Section II.K, Public Involvement/Public Role, further discusses this topic. The Storm Water Phase II FACA Subcommittee provided EPA with extensive feedback on today's proposed approach. Several commenters have questioned the justification for the use of urbanized areas or the designation criteria selected by EPA as guidance to the NPDES permitting authority (see Sec. 123.35(b)(1)). Municipal members of the subcommittee noted that the proposed rule could result in inequities among local governments and would not cover all contributors of pollutants to receiving waters. Some subcommittee representatives expressed concern that the proposed rule would impede the watershed approach due to its blanket coverage within urbanized areas but only specific designation outside of urbanized areas. Today's proposed rule addresses the problem of perceived inequities through the provision that any municipal separate storm sewer system can be designated by the permitting authority if found to be significantly contributing pollutants to the waters of the United States or contributing to an exceedance of water quality standards. EPA believes that the proposed approach, which provides for the designation of sources to be regulated based on local conditions, would facilitate watershed planning. EPA relies on data summarized in the NURP study and in the CWA section 305(b) reports to support an approach for targeted designation outside of urbanized areas. EPA has developed designation criteria based on findings of the NURP study and other studies that indicate pollutants of concern, including total suspended solids, chemical oxygen demand, and temperature. These criteria were the subject of considerable discussion by the Storm Water Phase II FACA Subcommittee and were revised in response to recommendations from the subcommittee. EPA invites comment on this issue. EPA would be particularly interested in data submitted on storm water discharges and associated pollutants of concern. 3. Provide Waivers EPA received comments from numerous State representatives that the proposal should recognize the efforts of existing State programs to address the significant concerns that potentially impact watersheds. In response, the Agency is proposing to provide some flexibility under Sec. 122.33(b) that allows NPDES permitting authorities to waive otherwise applicable requirements for certain regulated small municipal sources. Such waivers could be granted in cases where the jurisdiction served by the regulated small municipal separate storm sewer system includes a population of less than 1,000 persons, its discharges are not contributing substantially to the storm water pollutant loadings of a physically interconnected regulated municipal separate storm sewer system, and the owner or operator of the small municipal separate storm sewer system has certified that storm water controls are not needed based on (1) wasteload allocations that are part of TMDLs that address the pollutants of concern, or (2) a comprehensive watershed plan, implemented for the waterbody, that includes the equivalents of TMDLs and addresses the pollutants of concern. If such a waiver is granted, the TMDLs or watershed plan would need to demonstrate with reasonable assurance that load reductions take place pursuant to CWA section 303(d). It is important to note that EPA will continue to require States to comply with their TMDL implementation schedules. Where a State is the NPDES permitting authority, the permitting authority would be responsible for the development of the TMDLs or their equivalent determination as part of a watershed plan as well as the assessment of the extent a small municipal separate storm sewer system's discharge is contributing pollutants to a neighboring regulated system. In states where EPA is the permitting authority, EPA would use a State's watershed plan and TMDLs, where available. From these assessments, the permitting authority could make its determination regarding wasteload allocations and might determine that storm water controls are not required for certain small municipal separate storm sewer systems. Once these determinations are made, the owner or operator of the regulated small municipal separate storm sewer system, in seeking a waiver from the otherwise applicable requirements under today's proposal, would be responsible for certifying on a form provided by the NPDES permitting authority that they are covered by TMDLs or a watershed plan that indicates that discharges from their particular system are not having an adverse impact on water quality (i.e., they were not assigned wasteload allocations under TMDLs) and, therefore, implementation of storm water controls is not necessary and the waiver provision requirements have been met. Since the municipal waiver is indefinite, the owner or operator would not need to re- certify at the beginning of each permit term. EPA encourages the permitting authorities to make their waiver determinations as soon as possible in an attempt to avoid having the owners or operators of regulated small municipal separate storm sewer systems apply for a permit and begin to develop a program, but then later be waived from the applicable requirements. EPA seeks comment from permitting authorities on how they envision the process of implementing municipal waivers under today's proposed rule. Specifically, EPA would like comment on how the program could operate on a basis of self- certification for waivers. The NPDES permitting authority could, at any time, mandate compliance with program requirements from a previously waived regulated small municipal separate storm sewer system if circumstances change. For example, a waiver could be withdrawn in circumstances in which the permitting authority later determines that a storm water discharge to a small stream would cause adverse impacts to water quality resulting in a violation of water quality standards. A ``change in circumstances'' could involve receipt of new information by the permitting authority. EPA invites comments on concerns that the permitting authority could improperly grant waivers in an effort to provide relief to regulated entities based on concerns unrelated to water quality. EPA is also concerned that a permitting authority could redirect resources from other environmental programs in order to develop a watershed approach that promotes the issuance of the greatest number of waivers possible. EPA also invites comment on the option of broadening the universe of potential waivers by waiving the requirements of all small municipal separate storm sewer systems that have a population below 5,000, rather than 1,000, and meet the same criteria as in today's proposal. An option not proposed by EPA today is a waiver based on low population or low population density alone. EPA [[Page 1565]] considered a waiver option based on a simple population threshold. This option would have automatically waived all places within urbanized areas with a population of 1,000 persons or below. EPA found it difficult to justify a particular threshold number without allowing for more flexibility or additional criteria in order to determine if storm water controls were necessary. This option also did not fully account for water quality impacts and would create arbitrary donut holes, some of which could have significant impacts on water quality and should be regulated. Small entity representatives commented, however, that municipalities with less than 1,000 persons may lack the technical capacity to certify that their discharges are not contributing to adverse water quality impacts in areas where a TMDL or comprehensive watershed plan has not been developed by the permitting authority. This concern was shared by the Federal Small Business Advocacy Review Panel (see Section VII. below). EPA is thus requesting comment on the option of waiving coverage for all municipalities with less than 1,000 people (including those located in urbanized areas) unless the permitting authority determines that they should be required based on significant adverse water quality impacts. In addition to waivers, the Agency is also considering possible approaches for providing incentives for local decisionmaking that would limit the adverse water quality impact associated with uncontrolled growth in a watershed. In situations where there are special controls or incentives (e.g. transferable development rights, traditional neighborhood development ordinances) in place directing development toward compact/mixed use development and away from wetlands, open space, or other protected lands, it may be possible to provide some relief to municipalities in terms of implementation of the proposed minimum control measures in areas of infill, or compact mixed use, the relief would pertain to minimum control measures concerning construction and new infill development or redevelopment. Where TMDLs are done in a watershed, the use of such controls or incentives by municipalities might be considered as the basis for the TMDLs. EPA solicits comment on this approach and any other recommendations for the use of such incentives. 4. Issue Permits NPDES permitting authorities have a number of responsibilities regarding the permit process. The Agency is proposing Secs. 123.35(d) through (g) to ensure a certain level of consistency for permits, yet providing numerous opportunities for flexibility. NPDES permitting authorities must issue NPDES permits to cover municipal sources that would be regulated under Sec. 122.32 of today's proposed rule, unless waived under Sec. 122.33(b). EPA encourages permitting authorities to use general permits as the vehicle for permitting and regulating small municipal separate storm sewer systems. The Agency notes, however, that some owners or operators may wish to take advantage of the option to join as a co-permittee with a municipality regulated under the existing NPDES storm water program. Today's proposal includes a provision, Sec. 123.35(f), that requires NPDES permitting authorities to include the requirements in proposed Sec. 122.34 including as modified in accordance with Secs. 122.33(a)(3), 122.34(c), 122.35(b)) for NPDES permits issued for regulated small municipal separate storm sewer systems. See Section II.H.3.a, Minimum Control Measures, for more details on the actual requirements. In an attempt to avoid duplication of effort, EPA is specifically proposing in Sec. 122.34(c) to allow NPDES permitting authorities to include permit provisions that incorporate by reference qualifying local, Tribal, or State municipal storm water management program requirements that address one or more of the minimum controls of proposed Sec. 122.34(b). For a local, Tribal, or State program to ``qualify,'' it would need to impose, at a minimum, the relevant requirements of Sec. 122.34(b). A regulated small municipal separate storm sewer system would still need to submit an application, either an individual application or an NOI under a general permit, but would follow the requirements of the qualifying local, Tribal, or State program instead. The Agency invites comment on this approach. Under Sec. 122.35(b), NPDES permitting authorities might also recognize existing responsibilities among governmental entities for the minimum control measures in an NPDES small municipal storm water permit. For example, the permit might allow for the State to be responsible for addressing construction site runoff and require that the municipalities develop substantive controls for the remaining minimum control measures. By acknowledging existing programs, this provision is meant to reduce the duplication of efforts and to increase the flexibility of the NPDES storm water program. In Sec. 123.35(e), EPA is proposing that NPDES permitting authorities specify a time period of up to 5 years from the issuance date of an NPDES permit for regulated small municipal separate storm sewer system owners or operators to fully develop and implement their storm water programs. EPA believes this time period is adequate. As discussed more fully below, permitting authorities should be providing extensive support to the local governments to assist them in developing and implementing their programs. Under proposed Sec. 123.35(g), if an NPDES permitting authority issues a general permit to authorize storm water discharges from regulated small municipal separate storm sewer systems, the NPDES permitting authority would also need to provide or issue a menu of regionally appropriate and field-tested BMPs that the permitting authority determines to be cost-effective. The regulated small municipal separate storm sewer systems could choose to either select from this menu or select other BMPs that they feel are appropriate. The purpose of this menu is to provide small municipal separate storm sewer systems with additional guidance to assist them in implementing their storm water program. The menu would be further elaborated upon in guidance materials provided as part of the tool box (for further discussion regarding the tool box see Section II.A.5.). The menu itself is not intended to replace more comprehensive BMP guidance materials. Separate guidance documents that discuss the results from EPA-sponsored nationwide general studies on the construction, operation and maintenance of BMPs would be provided as part of the tool box efforts. The permitting authority may include this menu in the general permit when it is issued. This menu would need to be issued within two years of the publication of the final rule. This deadline tracks the amount of time that the State permitting authority would have to make any necessary regulatory or statutory changes to their program to accommodate the rule requirements. If an NPDES-approved State or Tribe failed to provide or issue this menu within two years of the publication of the final rule, EPA would be able to do so. Failure of the State to issue the menu of BMPs would not affect the legal status of the general permit. Measurable goals identified in a small municipal storm sewer system's NOI, or individual application, would not be considered a condition of the NPDES permit unless, and until, the permitting authority or EPA provided or issued the menu of [[Page 1566]] BMPs. The issuance of the menu of BMPs would be critical to assure protection of water quality since it triggers the permittee's requirement to meet narrative performance standards. 5. Support and Oversee the Local Programs NPDES permitting authorities would be responsible for supporting and overseeing the local municipal programs. EPA is proposing Sec. 123.35(h) to highlight issues associated with these responsibilities. To the extent possible, NPDES permitting authorities should provide financial assistance to local municipalities, which often have limited resources, for the development and implementation of local programs. EPA recognizes that funding for programs at the State and Tribal levels may also be limited, but strongly encourages States and Tribes to provide whatever assistance possible. In lieu of actual dollars, NPDES permitting authorities could provide cost-cutting assistance in a number of ways. For example, NPDES permitting authorities could develop outreach materials for municipalities to distribute or the NPDES permitting authority could actually distribute the materials. Another option would be to implement an erosion and sediment control program across an entire State (or Tribal land), thus alleviating the need for the municipality to implement its own program. Obviously, NPDES permitting authorities would need to balance the need for site-specific controls, which could be best handled by a local municipality, with the need to offer financial relief. EPA, States, Tribes, and municipalities should work as a team in making these kinds of decisions. NPDES permitting authorities would be responsible for overseeing the local programs. They would need to work with the regulated community and other stakeholders to assist in local program development and implementation. This might include sharing information, analyzing reports, and taking enforcement actions, as necessary. NPDES permitting authorities play a vital role in supporting local programs by providing technical and programmatic assistance, conducting research projects, and monitoring watersheds. Another important role for NPDES permitting authorities would be to ensure adequate legal authority at the local level so that municipalities could implement their part of the CWA section 402(p)(6) program. NPDES permitting authorities are encouraged to coordinate and utilize the data collected under several programs. States and Tribes address point and nonpoint source storm water discharges through a variety of programs. In developing the CWA section 402(p)(6) program, EPA recommends that States and Tribes coordinate all of their water programs, including the continuing planning process (CPP), the existing storm water program, the CZARA program, and nonpoint source programs. In addition, NPDES permitting authorities would be encouraged to use a brief (e.g., two-page) reporting format to facilitate compiling and analyzing data from submitted reports under proposed Sec. 122.34. EPA would develop a model form for this purpose. H. Municipal Role 1. Scope of Today's Proposal The Agency has selected for today's proposal an equitable and comprehensive four-pronged approach for the designation and coverage of municipal sources. First, the approach would define for automatic coverage the sources believed to be of most concern. Second, the approach would designate sources that meet a set of objective criteria used to measure the potential for water quality impacts. Third, the approach would designate on a case-by-case basis sources that ``contribute substantially to the storm water pollutant loadings of a physically-interconnected [regulated] municipal separate storm sewer system.'' Finally, the approach would designate on a case-by-case basis, upon petition, sources that ``contribute to a violation of a water quality standard or are a significant contributor of pollutants.'' As explained earlier, today's proposed rule would automatically designate for regulation small municipal separate storm sewer systems located in urbanized areas and would require that NPDES permitting authorities examine for potential designation, at a minimum, a particular subset of small municipal separate storm sewer systems located outside of urbanized areas. Any small municipal separate storm sewer system automatically designated by the proposed rule or designated by the permitting authority under today's proposed rule would be defined as a ``regulated'' small municipal separate storm sewer system. Today's proposal also includes a provision that would allow for a waiver from the otherwise applicable requirements for some regulated small municipal separate storm sewer systems, where warranted, based on a comprehensive water quality-based assessment. In today's proposed rule, all regulated small municipal separate storm sewer systems would need to establish a storm water program that meets the requirements of six minimum control measures, unless the system qualifies for, and the NPDES permitting authority grants, a waiver. These minimum control measures would be public education and outreach on storm water impacts, public involvement/participation, illicit discharge detection and elimination, construction site storm water runoff control, post-construction storm water management in new development and redevelopment, and pollution prevention/good housekeeping for municipal operations. Today's proposal would allow for a great deal of flexibility in how an owner or operator of a regulated small municipal separate storm sewer system would be authorized to discharge under an NPDES permit by providing various options for obtaining permit coverage and satisfying the required minimum control measures. For example, the NPDES permitting authority could incorporate by reference qualifying State, Tribal, or local programs in the NPDES general permit and could recognize existing responsibilities among different governmental entities for the implementation of minimum control measures. In addition, a regulated small municipal separate storm sewer system could participate in the storm water management program of an adjoining regulated medium or large municipal separate storm sewer system and could arrange to have another governmental entity implement a minimum control measure for them. 2. Municipal Definition This section explains which small municipal separate storm sewer systems would be regulated under today's proposed rule. This section also proposes several definitions of terms used to describe the applicability of the proposed program requirements. For one particularly important definition, the definition of an ``urbanized area,'' the discussion includes case studies and a map as examples. This section concludes with a discussion of the three alternatives EPA considered for determining which small municipal separate storm sewer systems would be covered by today's proposed rule. Regulatory Language in Today's Proposal The CWA does not define the term ``municipal separate storm sewer.'' EPA has exercised its discretion to define the scope of municipal systems consistent with its existing regulations. EPA [[Page 1567]] defined municipal separate storm sewer in the existing storm water permit application regulations to mean, in part, a conveyance or system of conveyances (including roads with drainage systems and municipal streets) that is ``owned or operated by a State, city, town borough, county, parish, district, association, or other public body designed or used for collecting or conveying storm water which is not a combined sewer and which is not part of a Publicly Owned Treatment Works as defined at 40 CFR 122.26'' (see 40 CFR 122.26(b)(8)(i)). Today's proposed rule adds to this definition ``the United States'' as a potential owner or operator of a municipal separate storm sewer. This addition is meant to address an omission from existing regulations and to clarify that Federal facilities are, in fact, covered by the NPDES program for municipal storm water discharges when the Federal facility is like other regulated municipal separate storm sewer systems. Federal facilities may be like other municipal separate storm sewer systems due to similar residential populations and road systems; therefore, anticipated storm water discharges would also be similar. The existing municipal permit application regulations define ``medium'' and ``large'' municipal separate storm sewer systems as those located in an incorporated place or county with a population of at least 100,000 (medium) or 250,000 (large) as determined by the latest Decennial Census (see 40 CFR 122.26(b)(4) and 122.26(b)(7)). In today's proposed rule, these regulations have been revised to define all medium and large municipal separate storm sewer systems as those meeting the above population thresholds according to the 1990 Decennial Census. The decision to ``freeze'' the definition of medium and large municipal separate storm sewer systems as of the 1990 Census was based on (1) a concern with deadlines, (2) an understanding that the permitting authority could always require more from owners or operators of municipal separate storm sewer systems serving ``newly over 100,000'' populations, and (3) the Agency's intention to merge the Phase I existing and Phase II proposed programs into a single seamless storm water program (see Secs. 122.26(b)(4), (b)(7) and (b)(16)). In today's proposed rule, owners or operators of small municipal separate sewer systems may be regulated under the NPDES program for storm water. Small municipal separate sewer systems are ``all municipal separate storm sewer systems that are not designated as a ``large'' or ``medium'' municipal separate storm sewer system, pursuant to 40 CFR 122.26(b)(4) and (b)(7), or designated under 40 CFR 122.26(a)(1)(v).'' Small municipal separate storm sewer systems include, but are not limited to, systems operated by local governments (including ``municipios''), State departments of transportation, and State, Tribal, and federal facilities. The term ``State, Tribal and federal facilities'' includes, but is not limited to, military installations, penitentiaries, universities and similar institutions with separate storm sewers draining areas. Municipal systems that were designated under 40 CFR 122.26(a)(1)(v) will continue to be regulated under the existing storm water program and, therefore, are not addressed under today's proposed rule. In today's proposed rule (see Secs. 122.32(a)(1) and 122.32(a)(2)), EPA defines ``regulated small municipal separate storm sewer systems'' to include all municipal separate storm sewers that are located in: (1) An incorporated place, county (only the portion located in an urbanized area), or other place under the jurisdiction of a governmental entity (including but not limited to Tribal or Territorial governments) located in an urbanized area, as determined by the latest Decennial Census by the Bureau of the Census (see 55 FR 42592, October 22, 1990), except for Federal Indian reservations where the population within the urbanized area is under 1,000 persons. (2) An incorporated place, county, or other place under the jurisdiction of a governmental entity other than those described in (1) above that is designated by the NPDES permitting authority. The NPDES permitting authority may designate any municipal separate storm sewer system located outside of an urbanized area. See Section II.G, NPDES Permitting Authority Role for the CWA section 402(p)(6) Municipal Program, for more details on this process. Definitions of Key Terms and Phrases The Bureau of the Census definition of ``incorporated place,'' adopted by EPA for purposes of today's proposal, is any place reported to the Bureau as legally in existence under the laws of the respective State as a city, borough, town, or village, with certain exceptions. (U.S. Department of Commerce, Bureau of the Census. 1994. Geographic Areas Reference Manual.) Because these Bureau of the Census exceptions would be included within the term ``county'' (see definition below), they would not impact the application of today's definition of a regulated small municipal separate storm sewer system in any way. The Bureau of the Census definition of ``county,'' adopted by EPA for the purposes of today's proposal, is ``the primary legal subdivision of every State except Alaska and Louisiana.'' (USDC, 1994) For the purposes of today's proposed rule, the term ``county'' also includes Louisiana's county equivalent known as a parish and Alaska's county equivalent, which is an organized borough. A county's unincorporated territory includes all minor civil divisions and census- designated places but excludes all incorporated places. Therefore, any area that is not an incorporated place would be included within the definition of ``county,'' with the exception of Tribal or Territorial areas. The phrase ``place under the jurisdiction of a governmental entity'' includes, but is not limited to, places within the jurisdiction of Tribes and Territorial governments. EPA is proposing this language in order to include governmental entities that are located within an urbanized area but whose government structure may not include incorporated places or counties. For example, Federal Indian reservations are neither incorporated places nor counties, but are sovereign entities, and Puerto Rico has ``municipios'' as their primary local government. The term ``Tribes'' includes any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation (40 CFR 122.2). ``Territorial governments'' include the following U.S. territories: the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands. ``Municipio'' means a Puerto Rico division which has legally established boundaries and constitutes a governmental unit. ``Pueblo'' or ``ciudad'' means the barrio or group of barrios which are considered the municipio center of government. ``Federal Indian reservation'' means all land within the limits of any Indian reservation or rancheria under the jurisdiction of the U.S. Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation (40 CFR 122.2; see also Section II.F. of today's preamble and section 518 of the CWA). Urbanized Areas Definition The Bureau of the Census definition of ``urbanized area,'' adopted by EPA for [[Page 1568]] the purposes of today's proposed rule, is as follows: An urbanized area (UA) comprises a place and the adjacent densely settled surrounding territory that together have a minimum population of 50,000 people. The ``densely settled surrounding territory'' adjacent to the place consists of the following: 1. Territory made up of one or more contiguous census blocks having a population density of at least 1,000 people per square mile provided that it is: a. Contiguous with and directly connected by road to other qualifying territory, or b. Noncontiguous with other qualifying territory, and: (1) Within 1 1/2 road miles of the main body of the urbanized area and connected to it by one or more nonqualifying census blocks that [a] are adjacent to the connecting road and [b] together with the outlying qualifying territory have a total population density of at least 500 people per square mile, or (2) Separated by water or other undevelopable territory from the main body of the urbanized area, but within 5 road miles of the main body of the urbanized area, as long as the 5 miles include no more than 1 1/2 miles of otherwise nonqualifying developable territory. 2. A place containing territory qualifying on the basis of criterion 1 [above] will be included in the urbanized area in its entirety (or partially, if the place is an extended city) if that qualifying territory includes at least 50 percent of the population of the place. If the place does not contain any territory qualifying on the basis of the above criterion, or if that qualifying territory includes less than 50 percent of the place's population, the place is excluded in its entirety. 3. Other territory with a population density of less than 1,000 persons per square mile, provided that it: a. Eliminates an enclave of no more than 5 square miles in the territory otherwise qualifying for the urbanized area when the surrounding territory qualifies on the basis of population density, or b. Closes an indentation in the boundary of the territory otherwise qualifying for the urbanized area when the contiguous territory qualifies on the basis of population density, provided that the indentation is no more than 1 mile across the open end, has a depth at least two times greater than the distance across the open end, and encompasses no more than 5 square miles. (55 FR 42592, October 22, 1990) The full definition of an ``urbanized area'' has been included primarily for informational purposes. Because the Bureau of the Census determines urbanized areas based on the latest decennial census, the owner or operator of a municipal separate storm sewer system does not need to make any calculations to determine eligibility as a regulated small municipal separate storm sewer system. The Bureau of the Census provides detailed maps and comprehensive listings of all political entities within a given urbanized area. For a more detailed description of the treatment of urbanized areas for purposes of today's proposal, see the following discussion entitled, Nationwide Designation. Also, see Appendix 3 for a listing of urbanized areas of the United States and Puerto Rico. a. Nationwide (``Automatic'') Designation In today's proposed rule, all small municipal separate storm sewer systems located in an incorporated place, county, or other place under the jurisdiction of a governmental entity that is included within an urbanized area would be automatically designated as ``regulated'' small municipal separate sewer systems under today's proposed storm water program, provided that they were not previously designated into the existing storm water program. Unlike medium and large municipal separate storm sewer systems under the existing storm water regulations, not all small municipal separate storm sewer systems would be designated under today's proposal and, therefore, a distinction is made in the rule between ``small'' municipal separate storm sewer systems and ``regulated small'' municipal separate storm sewer systems. EPA estimates that this automatic designation would include approximately 3,500 incorporated places and counties (about 16% of all incorporated places and counties nationwide), 41 municipios (more than 50% of all municipios in Puerto Rico), and 27 Tribes (although 9 of these Tribes would be exempted and there are other special considerations--see Section II.F, Tribal Role). In addition, as previously discussed, this definition would include State, Tribal, and Federal highways and facilities located within urbanized areas. It is important to note that if a county or Federal Indian reservation is only partially included in an urbanized area, only the urbanized portion of the county or Federal Indian reservation would be regulated. Although rare, even if an incorporated place is only partially included in the urbanized area, then the entire place is regulated. The regulation of counties is meant to capture all unincorporated areas located within the urbanized area in an effort to create a seamless program by avoiding the creation of unregulated areas surrounded by regulated areas, sometimes referred to as ``donut holes'' in the regulatory scheme. For example, if an urbanized area contains a regulated medium or large municipal separate sewer system that has within its boundaries some incorporated places that were originally excluded from the storm water program due to the population threshold of 100,000, most of these previously unregulated donut holes would now be defined as regulated small municipal separate sewer systems under today's proposed rule and would be covered by the NPDES program for storm water. In Puerto Rico, EPA is proposing to regulate the entire municipio where the total population is equal to or greater than 100,000. Those municipios include Bayamon, Caguas, Carolina, Mayaguez, Ponce, and San Juan. For the other municipios that are located within an urbanized area and have populations of less than 100,000, only the pueblo will be regulated. i. Urbanized Area Description. There are 405 urbanized areas in the United States that cover 2 percent of total U.S. land area and contain approximately 63 percent of the nation's population (see Appendix 3 for a listing of urbanized areas of the United States and Puerto Rico). These numbers include U.S. Territories, although Puerto Rico is the only territory to have census-designated urbanized areas. Urbanized areas constitute the largest and most dense areas of settlement. The purpose of determining an ``urbanized area'' is to delineate the boundaries of development and map the actual built-up urban area. The Bureau of the Census geographers liken it to flying over an urban area and drawing a line around the boundary of the built-up area as seen from the air. An ``urbanized area'' comprises one or more places--central place(s)--and the adjacent densely settled surrounding area--urban fringe--consisting of (1) incorporated places, (2) census designated places, and (3) county nonplace territory that together have a minimum population of 50,000. ``Central places'' include both incorporated and census-designated places. ``County nonplace territory'' is the area of the county that does not include incorporated or census-designated places. (It is important to note that ``county'' as defined for the purposes of today's proposed rule includes census-designated places). The urban fringe is a contiguous area with an average population density of at least 1,000 persons per square mile at its perimeter (see full ``urbanized area'' definition above). The basic unit for delineating the urbanized area boundary is the census block. Census blocks are based on visible physical boundaries, such as the city block, when possible or on invisible political boundaries when not. In a [[Page 1569]] larger sense, the urbanized area determination is not based on political boundaries for counties or Federal Indian reservations but is for ``places.'' Place--A place is included in its entirety whether or not all of its census blocks meet the urbanized area definition. Therefore, this part of the urbanized area determination is based on political boundaries. However, it should be noted that in rare cases (128 places), a place is not included in its entirety, but rather is only partly included within the urbanized area, due to the existence of large expanses of vacant or very sparsely populated territory within its incorporated area. (Such ``extended cities,'' as they are called, are most common in North Carolina due to their unique annexation laws.) County/Federal Indian reservation--A county is included in its entirety only if all of its census blocks, based on the county's unincorporated area, meet the urbanized area definition. Unlike a place, a county is often ``split'' into urbanized and non-urbanized portions, with no regard for political boundaries. Under today's proposed rule, only the urbanized portion of a ``split county'' would be covered. The same case applies to Federal Indian reservations. Most owners or operators of municipal separate storm sewer systems would not need to independently determine the status of coverage under today's proposal. Most likely, a list of the places, counties, and other places under the jurisdiction of a governmental entity within an urbanized area would be published with the general permit. If not, they can contact their permitting authority or the Bureau of the Census to find out if their storm sewer systems are within an urbanized area. In addition, the necessary information should be available on the Bureau of the Census Internet Home Page (see http://www.census.gov/). Using data from the latest decennial census, the Census Bureau applies the urbanized area definition nationwide (including U.S. Tribes and Territories) and determines which places and counties are included within each urbanized area. For each urbanized area, the Bureau provides full listings of who is included, as well as detailed maps and special CD-ROM files for use with computerized mapping systems (such as GIS). Each State's data center receives a copy of the list, and some maps, automatically. The States also have the CD-ROM files and a variety of publications available to them for reference from the Bureau of the Census. In addition, local or regional planning agencies may have urbanized area files already. New listings for urbanized areas based on the 2000 Census will be available by July/August 2001, but the more comprehensive computer files will not be available until late 2001/early 2002. Appendix 6 to this preamble provides a list of incorporated places and counties proposed to be automatically designated as part of today's proposed rule. Additional designations based on subsequent census years would be governed by the Bureau of the Census' definition of an urbanized area in effect for that year. Based on historical trends, EPA expects that any area (incorporated place, county, or other place) determined by the Bureau of the Census to be included within an urbanized area as of the 1990 Census would not later be excluded from the urbanized area as of the 2000 Census due to a possible change in the Bureau of the Census' urbanized area definition. However, it is important to note that even if this situation were to occur, a small municipal separate storm sewer system once automatically designated into the NPDES program for storm water under an urbanized area calculation for any given Census year would remain regulated regardless of the results of subsequent urbanized area calculations. Appendix 2 is a simplified urbanized area illustration to help demonstrate the concept of urbanized areas in relation to today's proposed rule. The ``urbanized area'' is the shaded area that includes within its boundaries incorporated places, a portion of a Federal Indian reservation, an entire county, and portions of three other counties. Any and all owners and operators of small municipal separate storm sewer systems located in the shaded area would be covered by the proposed rule. Any small municipal separate storm sewers located outside of the shaded area would be subject to potential designation by the permitting authority. ii. Urbanized Area Profiles. To further illustrate the concept of urbanized areas, this section highlights two urbanized areas and their relationship to the NPDES storm water program. The first case study is the Milwaukee, Wisconsin, urbanized area, which already includes medium and large municipal separate storm sewer systems and would also include regulated small municipal separate storm sewer systems under today's proposed rule. The second case study is the Myrtle Beach, South Carolina, urbanized area, which would include only regulated small municipal separate storm sewer systems. Neither urbanized area has within its boundaries a Federal Indian reservation. Case Study 1: Milwaukee, WI (total urbanized area population = 1,226,293) The Milwaukee, Wisconsin, urbanized area has at its core the large municipal separate storm sewer system of Milwaukee, which is contained within the county of Milwaukee. The urbanized area extends beyond the boundaries of the city of Milwaukee into the county of Milwaukee and the four surrounding counties of Racine, Wauklesha, Washington, and Ozaukee. The county of Milwaukee is entirely within the urbanized area, while the other four counties are only partially within it. A total of five counties would be included in the storm water program, but only the municipal separate storm sewer systems in the urbanized portions of the counties would be automatically designated. In addition to the five counties, 38 incorporated places are within the urbanized area and would also be automatically designated as regulated small municipal separate storm sewer systems under today's proposal: River Hills Village, Mequon, Germantown, Lannon, Sturtevant, Wind Point, Big Bend, Pewaukee, Bayside, North Bay, Butler, West Milwaukee, Thiensville, Elmwood Park, Elm Grove, Sussex, Fox Point, Hales Corners, Cedarburg, St. Francis, Grafton, Oak Creek, Brown Deer, Glendale, Greendale, Cudahy, Shorewood, Whitefish Bay, Franklin, Menomonee Falls, New Berlin, Brookfield, Greenfield, South Milwaukee, Wauwataso, Waukesha, West Allis, City of Racine. The result is a pattern where a regulated medium or large municipal separate storm sewer system core is surrounded by regulated small municipal separate storm sewer systems located within unincorporated areas (counties) and incorporated places. Each owner or operator of a municipal separate storm sewer system in these areas would be responsible for obtaining an NPDES permit for the discharges from their system. Case Study 2: Myrtle Beach, SC (total urbanized area population = 58,384) The Myrtle Beach, South Carolina, urbanized area does not include a medium or large municipal separate storm sewer system. The entire urbanized area, with Myrtle Beach at its core, would meet the definition of a regulated small municipal separate storm sewer system. The Myrtle Beach urbanized area spreads into two counties, Harry and Georgetown counties, and covers only two incorporated places, Myrtle Beach and Surfside Beach. As was the case in the Milwaukee example, the counties of Harry and Georgetown are only partially [[Page 1570]] within the urbanized area. All owners or operators of municipal separate sewer systems located in the urbanized portions of Harry and Georgetown counties and in the two incorporated places would be included under the NPDES storm water program as regulated small municipal separate storm sewer systems, resulting in blanket coverage by the storm water program with no unregulated ``donut holes.'' iii. Rationale for Using Urbanized Areas. EPA proposes using urbanized areas to automatically designate regulated small municipal separate storm sewer systems on a nationwide basis for several reasons: (1) studies and data show a high correlation between degree of development/urbanization and adverse impacts on receiving waters due to storm water (U.S. EPA, 1983; Driver et al., 1985; Pitt, R.E. 1991. ``Biological Effects of Urban Runoff Discharges.'' Presented at the Engineering Foundation Conference: Urban Runoff and Receiving Systems; An Interdisciplinary Analysis of Impact, Monitoring and Management, August 1991. Mt. Crested Butte, CO. American Society of Civil Engineers, New York. 1992.; Pitt, R.E. 1995. ``Biological Effects of Urban Runoff Discharges,'' in Storm water Runoff and Receiving Systems: Impact, Monitoring, and Assessment. Lewis Publishers, New York.; Galli, J. 1990. Thermal Impacts Associated with Urbanization and Storm water Management Best Management Practices. Prepared for the Sediment and Storm water Administration of the Maryland Department of the Environment.; Klein, 1979), (2) this approach would target present and future growth areas as a preventative measure to help ensure water quality protection, (3) the determination of urbanized areas by the Bureau of the Census allows owners or operators of small municipal separate storm sewer systems to quickly determine whether they are included in the NPDES storm water program as a regulated small municipal separate storm sewer system, and (4) the blanket coverage within the urbanized area encourages the watershed approach and addresses the problem of ``donut-holes,'' where unregulated areas are surrounded by regulated areas. (Donut hole areas present a problem due to their contributing uncontrolled impacts on neighboring regulated communities and local waters.) One drawback to the proposed approach is that it would divide some counties into regulated areas and nonregulated areas. Such ``split'' counties could have difficulty focusing efforts, such as public education and the maintenance and management of infrastructure on just the regulated areas. One commenter suggested that in the case of a ``split'' county, only the incorporated areas within the urbanized portion of the county should be regulated, not the entire urbanized portion of the county. EPA would prefer, however, to create a seamless program that does not create donut holes as this suggestion would do, but rather includes all of the municipal separate storm sewer systems within the urbanized area. EPA is attempting to eliminate the existence of donut hole areas because municipal separate storm sewer system discharge sources within them could contribute to water quality impairment and could adversely affect the storm water management efforts of the neighboring regulated communities. Furthermore, as noted previously, including the entire urbanized portion of a county would promote partnerships in watershed efforts to improve local water quality. b. Municipal Designation by the Permitting Authority Today's proposed rule would also allow NPDES permitting authorities to designate areas that should be included in the storm water program as regulated small municipal separate storm sewer systems but do not qualify under the regulatory ``urbanized areas'' definition. The proposed rule requires, at a minimum, that a set of designation criteria be applied to all small municipal separate storm sewer systems within a jurisdiction that includes a population of at least 10,000 and a population density of at least 1,000. Appendix 7 to this preamble provides a list of incorporated places and counties proposed to be potentially designated as part of today's proposed rule. In addition, the owner or operator of any small municipal separate storm sewer system may be the subject of a petition to the NPDES permitting authority for designation. See Section II.G, NPDES Permitting Authority's Role for the CWA section 402(p)(6) Municipal Program, for more details on the designation and petition processes. EPA believes that the approach of combining nationwide and local designation to determine municipal coverage in today's proposed rule balances the potential for significant impacts on water quality with local watershed protection and planning efforts. The Agency solicits comments on this approach and possible alternatives. c. Waiving the Requirements for Regulated Small Municipal Separate Storm Sewer Systems Today's proposed rule would include some flexibility in the nationwide coverage of all small municipal separate storm sewer systems located in urbanized areas by providing the NPDES permitting authority with the discretion to waive the otherwise applicable requirements of a regulated small municipal separate storm sewer system serving less than 1,000 people where assessments of local conditions and watersheds warrant such a waiver. Note that even if a regulated small municipal separate storm sewer system had requirements waived, it could subsequently be brought back into the program if circumstances change. See Section II.G, NPDES Permitting Authority's Role for the CWA section 402(p)(6) Municipal Program, for more details on this process. i. Combined Sewer Systems. The definition of ``municipal separate storm sewer systems'' does not include combined sewer systems. A combined sewer system is a wastewater collection system that conveys sanitary wastewater and storm water through a single set of pipes to a publicly-owned treatment works (POTW) for treatment before discharging to a receiving waterbody. During wet weather events when the capacity of the combined sewer system is exceeded, the system is designed to discharge, prior to the POTW, directly into a receiving waterbody. Such an overflow is a combined sewer overflow, or CSO. Combined sewer systems are not subject to existing regulations for storm water, nor will they be subject to today's proposed regulations. EPA addresses combined sewer systems and CSOs in its National Combined Sewer Overflow (CSO) Control Policy that was issued on April 19, 1994 (59 FR 18688). The CSO Control Policy contains provisions for developing appropriate, site-specific NPDES permit requirements for combined sewer systems. CSO discharges are subject to BAT/BCT limits; municipal separate storm sewer systems are subject to MEP. Some municipalities are served by both separate storm sewer systems and combined sewer systems. If such a municipality is located within an urbanized area, only the separate storm sewer system within that municipality would be included in the NPDES storm water program and subject to today's proposed rule. If the municipality is not located in an urbanized area, then the NPDES permitting authority would have discretion as to whether the separate storm sewer system is subject to today's [[Page 1571]] proposed rule. Under today's proposed rule, the NPDES permitting authority would use the same process to designate for coverage a municipal separate storm sewer system where the municipality is also served by a combined sewer system, as it would for municipalities that are served only by a separate storm sewer system. The Agency recognizes that municipalities that have both combined and separate storm sewer systems may wish to find ways to develop a unified program to meet all wet weather requirements more efficiently. EPA seeks comment on ways to achieve such a unified program. d. Designation Alternatives Considered--Preliminary Options In developing the proposed approach, EPA considered several alternative approaches for designation. Three of the primary options considered are discussed below, in no particular order. EPA seeks comment on all three of these options and welcomes ideas for other alternative options for determining the definition of a regulated small municipal separate storm sewer system. i. Designation Option 1. One option EPA considered was the proposal suggested by the Storm Water Phase II FACA Subcommittee's Municipal De Minimis Work Group. Under this option, all municipal separate storm sewer systems would be included in the NPDES permit program, unless the system is aboveground, or underground and serving an area with a population density of less than 1,000. Local governments with no underground storm drain systems would be excluded, unless the NPDES permitting authority determined that storm drainage from aboveground (e.g., open drainage ditches) is within the control of the local government and that pollution from runoff from such drains is causing impairment to beneficial uses or exceedances of water quality standards in a permanent water body. This option would also exclude local governments with underground storm drains if they had a density of less than 1,000 persons/square mile (or some other criteria, such as building starts, rainfall, or percentage of imperviousness, if such parameters are proven better indicators of storm water pollution), unless: The NPDES authority finds that runoff from the local government drainage system is contributing to the impairment of beneficial uses or exceedances of water quality standards in a permanent waterbody. (The Municipal De Minimis Work Group purposely used the term ``permanent water body,'' and not the term ``waters of the United States,'' because they did not want intermittent streams, seasonal wetlands, etc. to be included. However, they did not define exactly what they envisioned to be a ``permanent water body.'') Any person could petition the NPDES authority to make or verify such a finding. Pollution from runoff from the local government drainage system either directly discharges to an adjacent municipality covered by these requirements or significantly contributes to the pollution from runoff that would otherwise be attributable to an adjacent municipality covered by these requirements. While EPA believes that this option concerning aboveground/ underground systems for densities of less than 1,000 persons has merit, the Storm Water Phase II FACA Subcommittee could not resolve issues associated with defining and quantifying the different types of ditches and drainage systems on a nationwide basis. The work group assumed that aboveground systems would consist primarily of vegetated ditches. However, enough data are not available to either prove or disprove this assumption. The work group found vegetated ditches highly desirable and worthy of exemption because of the benefits of natural management of storm water that they can provide. The pervious and contoured surface of vegetated ditches allows the water to percolate, resulting in an overall decrease in velocity and volume of flow and pollutant levels. However, these systems have variable removal efficiencies for pollutants and can potentially contribute additional pollutants to storm water runoff. Due to the variability of the types of aboveground system surfaces and the lack of data, EPA chose not to propose this option as its own. In addition, EPA had significant concerns about the number of smaller municipalities that would be permitted under such an approach, even though they might not contribute to significant water quality impacts. Under the approach selected for today's proposed rule, EPA believes that only those municipalities likely to contribute to significant water quality impacts would be designated into the storm water program. ii. Designation Option 2. Another option, which was suggested by several members of the Storm Water Phase II FACA Subcommittee, would require all small municipal separate storm sewer systems to be regulated under the NPDES program for storm water and to implement the six minimum measures as described in today's approach, unless the owner or operator of the system could prove that the system is not causing adverse water quality impacts and not contributing to pollutant loads in the watershed. One commenter suggested the use of this approach with an automatic exemption based on objective criteria, such as low population and proximity to waters of the United States. EPA acknowledges that this approach has advantages. It would guarantee that the areas of most concern are regulated, create a seamless storm water program without donut holes, avoid disputes over designation, and promote a watershed-based program because all sources in a watershed would already be in the program. In addition, its simple blanket coverage would create less confusion over whether an owner or operator of a municipal separate storm sewer system is in or out of the storm water program, and the burden for exclusion would be on the owner or operator of the municipal separate sewer system, not the permitting authority. Overall, this option best addresses the cumulative impact of all activities within a watershed that create environmental problems. By including only particular sources within a watershed, as is the case with the other options, the potential environmental benefits of the storm water program could be limited. Although this option might appropriately address issues of fairness and simplicity, it fails to target the areas of greatest concern (i.e., areas causing significant water quality impacts) and instead would regulate all areas regardless of impacts, unless an exemption was approved. This approach, by including a universe of approximately 19,289 incorporated places and 17,796 minor civil divisions located in 3,141 counties, in addition to Tribal lands and Territories, could regulate many more entities than the current proposal, resulting in higher costs than today's proposal for all involved. The exemption process, which could apply to thousands of municipalities, would require them to spend valuable time and resources trying to prove that they have little or no impact on water quality, while the permitting authority would be saddled with the additional burden of processing and evaluating such requests. It may be the case that the administrative burden for a storm water program of this size, and the potential overregulation, would not justify the full coverage it would provide. Furthermore, it would also be difficult to justify an automatic exemption based solely on the criteria of population size and proximity to waters of the United States. Total population (as opposed to [[Page 1572]] population density) is not a good measure of storm water impacts because it lacks an indication of where and how the population is distributed, both of which are significant factors addressed in today's proposal. For example, an area with high population could be less urbanized with fewer impacts on water quality than a place with lower population due to the size of the area involved in each. EPA anticipates extreme difficulty in determining and justifying a particular population threshold without also considering other factors that would help to both account for the variability of local conditions and indicate whether or not there are significant water quality impacts. Furthermore, a population threshold would still result in donut holes. Similar problems could be associated with the second criterion of ``proximity to waters of the United States.'' It is an important consideration but not much more telling than total population due to the variety of local conditions that could or could not make this criterion a significant factor in the determination of real or potential water quality impacts. Therefore, even the tandem use of these two criteria could lack enough information to make an informed and justifiable decision on an exemption. For the reasons discussed above, EPA chose not to propose this option. iii. Designation Option 3. To satisfy CWA section 402(p)(5)(C), EPA recommended the approach outlined in President Clinton's Clean Water Initiative. This approach was similar to today's proposed approach in that the NPDES permitting authority would issue system-wide NPDES permits for all municipal separate storm sewer systems in census- designated urbanized areas. This option would require storm water management programs for municipal separate storm sewer systems in the 138 urbanized areas in which a medium or large municipal separate sewer system is located. At a minimum, the programs would address non-storm water discharges into storm sewers and storm water runoff from growth and development and significant redevelopment. NPDES permitting authorities would be encouraged to implement watershed approaches and more comprehensive program requirements where necessary and appropriate. In the remaining 267 census-designated urbanized areas (containing only small municipal separate storm sewer systems), municipal storm water management programs would be less stringent and required to focus only on controlling non-storm water discharges into storm sewers and storm water runoff from growth, development, and significant redevelopment activities. By focusing on census-designated urbanized areas, many of the sources of greatest concern would be addressed, while also providing a clear definition of who is included in the storm water program. However, the tiered permitting requirements of this approach could create unnecessary confusion. EPA would not want to require regulated small municipal separate storm sewer systems in urbanized areas with a medium or large municipal separate storm sewer system to do more than those in urbanized areas without a medium or large municipal separate storm sewer system. Rather, EPA envisions progress toward a seamless, unified, and comprehensive NPDES storm water program with equivalent program requirements as the best approach. If this alternative option was adopted, three varying levels of requirements (the existing requirements plus two tiers for small municipal separate sewer systems) would eventually need to be unified instead of just two, as found under today's proposal. Although primarily concerned with growth associated with urbanized areas, this approach is also limited by its reliance on non-NPDES programs for addressing sources beyond urbanized areas. Environmental and municipal representatives on the Storm Water Phase II FACA Subcommittee agreed that any sources that are significant contributors of pollutants should be considered for regulation directly under an NPDES permit, including those outside of urbanized areas. For these reasons, EPA did not present this option as the lead option. 3. Municipal Permit Requirements EPA is proposing that all owners or operators of regulated small municipal separate storm sewer systems, as defined at Sec. 122.32, must seek coverage under an NPDES permit. EPA intends that the vast majority of discharges from these sources would be authorized under general permits issued by the NPDES permitting authority. These NPDES general permits would provide specific instructions for how to seek coverage, including application requirements. Typically, such application requirements would be satisfied by the submission of an NOI to be covered by the general permit. For cases in which an NPDES general permit is not available or the NPDES permitting authority requests that an owner or operator be covered under an individual NPDES permit, EPA is proposing simplified individual permit application requirements at Sec. 122.33. Under the simplified individual permit application requirements, the owner or operator would submit an application to the NPDES permitting authority that includes the information required under Sec. 122.21(f), an estimate of square mileage served by the separate storm sewer system, and any additional information that the NPDES permitting authority requests. Consistent with CWA section 308 and analogous State law, the permitting authority could request any additional information to gain a better understanding of the system and the areas draining into the system. Today's proposal also would allow an owner or operator of a regulated small municipal separate storm sewer system to join as a co- permittee in an existing NPDES permit issued to an adjoining medium or large municipal separate storm sewer system or designated source under the existing storm water program through a modification of that municipal separate storm sewer system's permit. This co-permittee provision would only apply if agreed to by all co-permittees. Under a co-permittee arrangement, the owner or operator of the regulated small system would need to comply with the applicable requirements of Sec. 122.26 and the terms and conditions of the applicable permit, but would not be required to fulfill all the permit application requirements applicable to medium and large systems and permit condition requirements applicable to regulated small systems. Specifically, the regulated small system owner or operator would not be required to comply with the permit condition requirements of Sec. 122.34 of today's proposal or with the application requirements of Sec. 122.26(d)(1)(iii) (Part 1 source identification), Sec. 122.26 (d)(1)(iv) (Part 1 discharge characterization), and Sec. 122.26(d)(2)(iii) (Part 2 discharge characterization data). Furthermore, the owner or operator of the regulated small system could satisfy the requirements in Sec. 122.26(d)(1)(v) (Part 1 management programs) and Sec. 122.26(d)(2)(iv) (Part 2 proposed management program) by referring to the adjoining municipality's existing plan. An owner or operator pursuing this option would need to describe in the permit modification request how the adjoining municipality's storm water program addresses or would need to be supplemented in order to adequately address discharges from the municipal separate storm sewer system. The request would also need to explain the [[Page 1573]] role of the owner or operator in coordinating local storm water activities and describe the resources available to accomplish the plan. EPA believes that this approach would support the goal of an integrated and coordinated national storm water program. Regulated small system owners or operators could take advantage of existing programs to ease the burden of creating their own from scratch. The proposal would allow them to conduct activities that are coordinated on a regional basis. For medium and large system owners or operators, this approach would promote the use of regional and watershed-based planning as an implementation framework for the storm water program and would create opportunities for sharing the resource and cost burden of the program with participating entities. EPA is particularly interested in comments regarding the actual implementation of this application provision. For instance, whether the provision contains the appropriate subsections of Sec. 122.26(d) and whether the process as set forth creates an incentive to use this alternative for permit coverage. In today's notice, EPA is proposing certain minimum control measures for all NPDES permits issued to regulated small municipal separate storm sewer systems, with the exception of joint co- permittees, as noted previously, to ensure equity and consistency among owners or operators. Any NPDES permit issued under this program would, at a minimum, require the owner or operator to develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants from a regulated system to the maximum extent practicable (MEP) and protect water quality (see MEP discussion in the following section). Narrative effluent limitations requiring implementation of BMPs would generally be considered the most appropriate form of effluent limitations when designed to satisfy technology requirements, including reductions of pollutants to the maximum extent practicable, and water quality-based requirements of the CWA. Examples of narrative effluent limitations include no floatables in storm water discharges and no visible sheen on waterbodies. In the first two to three rounds of permit issuance, EPA envisions that implementation of the minimum measures and BMP-based program would be the extent of the storm water permit requirements for the large majority of regulated small municipal separate storm sewer systems. EPA assumes that a regulated small municipal separate storm sewer system implementing BMPs to satisfy the six minimum control measures would meet applicable water quality standards, because, though uncontrolled urban storm water continues to present a significant water quality problem, the six measures represent a significant level of control if properly implemented. EPA believes that the implementation of any controls, but particularly the six minimum measures identified in today's proposal, should significantly reduce pollutants in urban storm water compared to existing levels. If after implementing the six minimum control measures there is still a water quality problem associated with discharges from the municipal separate storm sewer system, the municipality would need to expand or better tailor its BMPs within the scope of the six minimum control measures for each subsequent permit. EPA envisions that this process would take two to three permit terms. During this time, EPA would revisit the regulations for the municipal storm water program. If additional specific measures to protect water quality were imposed, they would likely be the result of an assessment based on TMDLs, or the equivalent of TMDLs, where the proper allocations would be made to all contributing sources. EPA believes that the municipality's additional requirements, if any, should be guided by its equitable share based on a variety of considerations, such as cost effectiveness, proportionate contribution of pollutants, and ability to reasonably assume wasteload reductions. Narrative effluent limitations requiring implementation of BMPs are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements, including reductions of pollutants to the maximum extent practicable, and water quality-based requirements of the Clean Water Act. See Section II.L, Water Quality Issues, for further discussion of this approach to permitting, consistent with EPA's interim permitting guidance. The municipal caucus was concerned that a requirement to meet water quality standards would be interpreted by a permitting authority as a requirement to include water quality-based numeric limitations in municipal storm water permits. Municipal representatives believe that in many cases it would not be possible to develop a storm water program that would result in the attainment of numeric limitations, except at considerable cost. Today's proposal addresses this concern, as discussed above. As part of this program, the owner or operator would be required to identify and submit to the NPDES permitting authority, either in an NOI to be covered under a general permit or in an individual permit application, the BMPs to be implemented and the measurable goals for each of the minimum control measures discussed in Section II.H.3.a., Program Requirements--Minimum Control Measures. The term ``measurable goals'' is derived from negotiations among FACA representatives. Section 402(p)(6) of the CWA states that the program to regulate additional storm water discharges may include performance standards, guidelines, guidance, and management practices as appropriate. Discussions among FACA representatives resulted in the use of the term ``measurable goals.'' On the one hand, environmental representatives wanted to include performance standards as conditions of NPDES permits as a means of providing for specific, tangible activities to be undertaken within the municipal storm water management program. On the other hand, municipal representatives opposed the inclusion of performance standards, asserting that they were counter productive because they could encourage an owner or operator of a municipal separate storm sewer system to avoid risks associated with setting any standard that it felt it could not achieve with certainty. Out of this discussion, a compromise was reached in the use of the term ``measurable goals'' and the process embodied in the proposed rule. This process sets the issuance of a menu of regionally-appropriate BMPs as the conditions precedent to ``measurable goals'' becoming permit conditions. Some storm water management plans developed to meet requirements of the existing storm water program include provisions similar to the concept of ``measurable goals'' proposed today. Specifically, some municipal storm water management plans include, for example, inspection of or cleaning of a fixed number of storm drain inlets per year and a survey of all municipal right-of-ways to identify illicit connections to the municipal separate storm sewer system. Currently, existing permit application regulations for municipal separate storm sewer systems require identification and implementation of BMPS and not necessarily measurable goals, much less performance standards. Qualifying State, Tribal, or local programs that meet the requirements of one or more of the minimum control measures could be incorporated by [[Page 1574]] reference into the NPDES municipal separate storm sewer system general permit. For more information regarding the general permit NOI or individual permit application, see Section II.H.3.b., Application Requirements. Maximum Extent Practicable Maximum extent practicable (MEP) is a technology-based control standard currently used in the existing municipal storm water program against which permit writers and permittees assess whether or not an adequate level of control has been proposed in the storm water management program. The Urban Wet Weather Flows Federal Advisory Committee recommended to EPA that MEP be applied to all permits issued to municipal separate storm sewer systems, including those proposed to be regulated today, to achieve greater cooperation and consistency, reduce conflicts and confusion, and improve economies of scale in the efforts of municipalities to manage storm water pollution. In today's proposal, NPDES permits issued for regulated small municipal separate storm sewer systems, whether in the form of general or individual permits, would require the owner or operator to develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants to the maximum extent practicable. The permittee would be expected to reduce the pollutants to the MEP through implementation of the following minimum control measures: Public education and outreach on storm water impacts, public involvement/participation, illicit discharge detection and elimination, construction site storm water runoff control, post-construction storm water management in new development and redevelopment, and pollution prevention/good housekeeping for municipal operations. Under today's proposed approach, MEP would be determined through a series of steps associated with identification and implementation of the minimum control measures. In issuing the general permit, for example, the NPDES permitting authority would establish requirements for each of the minimum control measures and require municipalities to identify the BMPs to be performed and measurable goals to be achieved. Permittees would then be required to identify the BMPs and associated measurable goals for addressing each of the minimum control measures in their NOIs. Upon receipt of the NOI from a municipality, the NPDES permitting authority would then have the opportunity to review the NOI to verify that the identified BMPs and measurable goals would meet the MEP requirement and, if necessary, could ask the permittee to revise the mix of BMPs to better reflect the requirement. A similar procedure could be established for a small municipal separate storm sewer system that is a co-permittee with a municipal separate storm sewer system that is already regulated in an individual NPDES permit. This process would be followed by actual program implementation by the municipality. Under the proposed approach, implementation of BMPs consistent with storm water management program requirements at Sec. 122.34 and permit provisions at Sec. 122.33 would constitute compliance with the standard of ``reducing pollutants to the maximum extent practicable.'' The pollutant reductions that represent MEP may be different for each municipality, given the unique storm water concerns that may exist and the differing possible remedies. Therefore, each permittee would determine the specific details in each of the six minimum control measures that represent MEP through an evaluative process. In this process, permittees and permit writers would evaluate the proposed storm water management controls to determine whether reduction of pollutants to the MEP could be achieved with the identified BMPs. EPA envisions that this evaluative process would consider such factors as conditions of receiving waters, specific local concerns, and other aspects included in a comprehensive watershed plan. The FACA Committee is currently working to identify evaluative MEP criteria. Suggestions have included: (1) The effectiveness to address the pollutant(s) of concern, (2) public acceptance, (3) cost, (4) technical feasibility, and (5) compliance with Federal, State and local laws and regulations. Prior to permit issuance, EPA plans to develop additional policy and technical guidance on the process of evaluating MEP for municipal separate storm sewer system permits based upon the recommendations received from the FACA Committee. This guidance would be applicable to both medium and large systems (addressed by existing requirements), as well as those addressed by today's proposal. It is important to note that States implementing their own NPDES programs may develop more stringent requirements than those proposed in today's rule. In any event, additional elaboration of the MEP determination process is not necessary prior to issuance of the final rule, because MEP is determined on a permit-by-permit basis. a. Program Requirements--Minimum Control Measures i. Public Education and Outreach on Storm Water Impacts. EPA is proposing that any NPDES permit issued to regulated small municipal separate storm sewer systems would require the owner or operator to implement a public education program to distribute educational materials to the community (or conduct equivalent outreach activities) about the impacts of storm water discharges on waterbodies and the steps to reduce storm water pollution. The State, EPA, environmental organizations or other public interest or trade organizations could provide materials, subject to the approval of the owner or operator of the municipal system. The materials or outreach programs should inform individuals and households about steps that can be taken to reduce storm water pollution, such as ensuring proper septic system maintenance, limiting the use and runoff of garden chemicals to appropriate amounts, properly disposing of used motor oil or household hazardous wastes, and becoming involved in local stream restoration activities. EPA would encourage individuals to participate in activities coordinated by youth service organizations, conservation corps, or other citizen groups. Other possible outreach materials could encourage citizens to participate in the municipal program by performing such services as roadside litter pickup and storm drain stenciling or highlight the potential public health risks to children if exposed to pollution when playing near storm drains. In addition, some of the materials or outreach programs should be directed toward targeted groups of commercial, industrial, and institutional entities likely to have significant storm water impacts to explain their impacts on storm water pollution (e.g., information to restaurants on the impact of grease clogging storm drains and to garages on the impacts of used oil discharges). The owner or operator is encouraged to tailor the outreach program to address the viewpoints and concerns of all communities, particularly minority and disadvantaged communities, as well as children. EPA believes that as the public gains a greater understanding of the municipally developed program, the municipality is likely to gain more support for the program (including funding initiatives). In addition, compliance with the program would probably be greater if the public [[Page 1575]] understands the personal responsibilities expected of them and others. Well-informed citizens could even act as formal or informal educators to further disseminate information and gather support for the program, thus easing the burden on the municipalities to perform all educational activities. The public outreach provision has been tailored to respond to specific concerns raised in the course of the FACA process. For example, municipal representatives advocated the inclusion of language that would clarify that use of educational materials from outside groups, such as trade associations and environmental groups, would be subject to the approval of the municipality. Also, the above-referenced language addressing environmental justice concerns was in response to input from Storm Water Phase II FACA Subcommittee members. Municipalities would be encouraged to enter into partnerships with their States in fulfilling the public education requirement. It may be much more cost-effective to utilize a State education program instead of numerous municipalities developing their own. Municipalities would also be encouraged to work with other organizations (e.g., environmental and nonprofit groups and industry) that might be able to assist in fulfilling this requirement. Many of these kinds of organizations already have educational materials, and the groups could work together to educate the public. EPA requests comment on the appropriateness of the specified requirements for public education and outreach. ii. Public Involvement/Participation. Public involvement is an integral part of the municipal storm water program. The Agency believes that the public can provide valuable input and assistance to the municipality's storm water program. The Agency, therefore, is proposing that the public play an active role in the development and implementation of the municipality's storm water management program. The municipal storm water management program would need to include a public participation program that complies with applicable State and local public notice requirements. The public should participate as a partner in developing, implementing, and reviewing the storm water management program. Opportunities for members of the public to participate in program development and implementation could include serving as citizen representatives on a local storm water management panel, attending public hearings, working as citizen volunteers to educate other individuals about the program, assisting in program coordination with other pre-existing programs, or participating in volunteer monitoring efforts. The public participation process should engage all economic and ethnic groups. Early and frequent public involvement can shorten implementation schedules and broaden public support for a program. One challenge associated with public involvement is addressing conflicting viewpoints. Another challenge is in engaging the public in the public meeting and program design process. Nevertheless, EPA strongly believes that the overall benefits of an aggressive and inclusive program, including involvement of low-income and minority communities, is an essential component of a State, Tribal, Federal, and municipal storm water management program. Public participation ensures a more successful storm water program by providing valuable expertise and a conduit to other programs and governments, which would be of primary importance if the municipal storm water program is to be implemented on a watershed basis. The public could act as volunteers in all aspects of the program, thus saving municipal resources. Another recognized benefit is that members of the public are less likely to raise legal challenges to a municipality's storm water program if they have been involved in the decisionmaking process and program development and, therefore, are partially responsible for the program themselves. Section II.K. provides further discussion on public involvement. EPA requests comment on the appropriateness of the specified requirements for public involvement/participation. iii. Illicit Discharge Detection and Elimination. Discharges from storm water drainage systems often include wastes and wastewater from non-storm water sources. EPA's Nationwide Urban Runoff Program (NURP) indicated that many storm water outfalls still discharge during substantial dry periods. Pollutant levels in these dry weather flows were shown to be high enough to significantly degrade receiving water quality. Results from a 1987 study conducted in Sacramento, California, revealed that slightly less than one-half of the water discharged from a municipal separate storm sewer system was not directly attributable to precipitation runoff (U.S. Environmental Protection Agency, Office of Research and Development. 1993. Investigation of Inappropriate Pollutant Entries Into Storm Drainage Systems--A User's Guide. Washington, D.C. EPA 600/R-92/238.) A significant portion of these dry weather flows results from illicit and/or inappropriate discharges and connections to the municipal separate storm sewer system. Illicit discharges enter the system through either direct connections (e.g., wastewater piping either mistakenly or deliberately connected to the storm drains) or indirect connections (e.g., infiltration into the storm drain system or spills collected by drain inlets). Under the existing NPDES program for storm water, permits for large and medium municipal separate storm sewer systems are to include an effective prohibition against non-storm water discharges into their storm sewers (see CWA section 402(p)(3)(B)(ii)). Further, EPA believes that in implementing municipal storm water management plans under these permits, large and medium municipalities generally found their illicit discharge detection and elimination programs to be cost-effective. In today's proposal, any NPDES permit issued to an owner or operator of a regulated small municipal separate storm sewer system would, at a minimum, require that owner or operator to develop and implement an illicit discharge detection and elimination program. Inclusion of this measure for municipal storm water programs for regulated small municipalities would be consistent with the ``effective prohibition'' requirement for large and medium municipal separate storm sewer systems. Under such a program, the owner or operator would be required to demonstrate awareness of the system using maps or other existing documents. The owner or operator would also be required to develop (if not already completed) a storm sewer system map (or equivalent) showing the location of major pipes, outfalls, and topography. The map should identify areas of concentrated activities likely to be a source of storm water pollution, if the data already exist. To ensure the effectiveness of this measure, the owner or operator would be required to effectively prohibit through ordinance, order, or similar means (for nongovernmental owners or operators of municipal separate storm sewer systems), to the extent allowable under State or Tribal law, illicit discharges into the separate storm sewer system and implement appropriate enforcement procedures and actions as needed. This measure would also require the owner or operator to develop [[Page 1576]] and implement a plan to detect and address illicit discharges (including illegal dumping) to the system. Finally, the measure would require the owner or operator to inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste. These informational actions could include storm drain stenciling; a program to promote, publicize, and facilitate public reporting of illicit connections or discharges; and distribution of outreach materials. Recycling and other public outreach programs could be developed to address potential sources of illicit discharges, including used motor oil, antifreeze, pesticides, herbicides, and fertilizers. EPA seeks comment regarding the prohibition and enforcement provision for this minimum measure and specifically requests comment regarding the implications of specifying that the owner or operator would have to implement the appropriate prohibition and enforcement procedures ``to the extent allowable under State or Tribal law.'' Concerns have been raised that by qualifying prohibition and enforcement procedures in this manner, the owner or operator could altogether ignore this minimum measure where appropriate authority did not exist. Municipalities have pointed out, however, that they cannot legally exceed the authority granted them under State law, which varies considerably from one state to another. The illicit discharge detection and elimination program would not necessarily need to address all types of non-storm water discharges. As with the existing municipal application requirements, the following categories of non-storm water discharges or flows would only need to be addressed in the municipal storm water program where such discharges are identified as significant contributors of pollutants: water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20)) to separate storm sewers, uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water. The program should address discharges or flows from fire fighting where such discharges or flows are identified as significant sources of pollutants. The existing storm water permit application requirements at Sec. 122.26(d), contain two sets of application requirements regarding illicit discharges that EPA does not propose to require of regulated small municipal separate storm sewer systems. Specifically, EPA does not propose to require regulated small system owners or operators to describe procedures to prevent, contain, and respond to spills that could discharge into the municipal separate storm sewer and controls to limit infiltration of seepage from municipal sanitary sewers to municipal separate storm sewer systems where necessary. This is pursuant to comments received from municipal representatives on the Storm Water Phase II FACA Subcommittee. EPA anticipates that these procedures are already effectuated through the implementation of existing municipal programs, such as emergency response teams and operation of the wastewater treatment system. EPA requests comment on the appropriateness of the specified requirements for illicit discharge detection and elimination. iv. Construction Site Storm Water Runoff Control. Over a short period of time, storm water discharges from construction site activity can contribute more pollutants, including sediment, to a receiving stream than had been deposited over several decades. Storm water runoff from construction sites can include pollutants other than sediment, such as phosphorus and nitrogen from fertilizer, pesticides, petroleum derivatives, construction chemicals, and solid wastes that may become mobilized when land surfaces are disturbed. Generally, properly implemented construction site ordinances are effective in reducing these pollutants. In many areas, however, the effectiveness of ordinances in reducing pollutants is limited due to inadequate enforcement or incomplete compliance with such local ordinances by construction site discharges of storm water. Not all construction site owners or operators properly maintain BMPs. For example, sediment traps and sediment basins may fill up and silt fencing may break or be overtopped. Today's proposed rule would require owners or operators of regulated small municipal separate storm sewer systems to develop, implement, and enforce a pollutant control program to reduce pollutants in storm water runoff from construction activities that result in land disturbance of 1 or more acres to their municipal separate storm sewer systems as a part of their storm water management program. The owner or operator would need to use an ordinance or other regulatory mechanism that controls erosion and sediment to the maximum extent practicable and allowable under State, Tribal, or local law. The program also would need to ensure control of other waste at construction sites that could adversely impact water quality. This waste could include discarded building materials, concrete truck washout, and sanitary waste. The program would need to include, at a minimum, requirements for construction site owners or operators to implement appropriate BMPs, such as silt fences, temporary detention ponds and hay bales; provisions for pre-construction review of site management plans; procedures for receipt and consideration of information provided by the public; regular inspections during construction; and penalties to ensure compliance. Today's proposal includes the program requirement to establish procedures for the receipt and consideration of information provided by the public in response to stakeholder concerns regarding public involvement and public access to information. This requirement further reinforces the public participation component of the municipal program by establishing a formal process for considering and responding to public inquiries regarding construction activities. Some stakeholders have expressed concern regarding the proposed site management plan provision, which would establish requirements for review but not for approval of such plans. EPA requests comment on expanding this provision to require both review and approval of construction site storm water plans. EPA also invites comment on the basic program components. In conjunction with these requirements, EPA is also proposing to add Sec. 122.44(s) which would allow the NPDES permit issued to regulated construction sites (described under Sec. 122.26(b)(15)(i)) to incorporate by reference qualifying State, Tribal, or local erosion and sediment control program requirements. A qualifying State, Tribal, or local erosion and sediment control program would be one that meets the requirements of a municipal NPDES separate storm sewer permit or a program otherwise approved by the NPDES permitting authority for programs operating outside geographic boundaries of a permitted municipal separate storm sewer system. The NPDES permitting authority's approval of such programs would need to assure compliance with the minimum construction site control program requirements described above. The permitting authority could also include, [[Page 1577]] by reference in a general permit, those State, Tribal, or local requirements that meet the standard of best available technology (BAT) for those construction site storm water discharges identified at Sec. 122.26(b)(14)(x) (i.e., sites disturbing more than 5 acres of land), including clearing, grading, and excavation activities. As a result of this provision, such local requirements would, in effect, provide the construction site erosion and sediment control requirements of the NPDES permit. Construction site owners and operators would be subject to only one set of erosion and sediment control requirements, thereby eliminating duplication. At the same time, noncompliance with the referenced local requirements would be considered noncompliance with the NPDES permit and would be federally enforceable. EPA developed the ``incorporation by reference'' approach, which is similar to implementation efforts designed by the State of Michigan, to avoid duplication of effort in the development of regulatory requirements by different levels of government. Michigan relies on localities to develop substantive controls for storm water discharges associated with construction activities on a localized basis. The State agency, as the NPDES permitting authority, receives an NOI (termed ``notice of coverage'' by Michigan) under the general permit and tracks and exercises oversight, as appropriate, over the activity causing the storm water discharge. Michigan's goal under these procedures is to utilize the existing erosion and sediment control program infrastructure authorized under State law for storm water discharge regulation. (See U.S. Environmental Protection Agency, Office of Water. January 7, 1994. Memo: From Michael B. Cook, Director OWEC, to Water Management Division Directors, Regarding the ``Approach Taken by Michigan to Regulate Storm Water Discharges from Construction Activities.'') EPA acknowledges that many owners or operators of small municipal separate storm sewer systems already administer local erosion and sediment control programs. EPA believes that today's proposed approach would recognize a municipality's flexibility in developing practical procedures to control construction site discharges from within its jurisdiction, while still requiring an NPDES permit to ensure an appropriate base level of water quality protection. Moreover, the Agency also believes that there is an appropriate role for the permitting authority as well as citizens groups in ensuring that construction site owners/operators comply with the requirements of an NPDES permit. Finally, EPA contemplates that there would be some permit provisions, such as requirements for site management plans, that are not typically required by local erosion and sediment control programs which would be required as one of the requirements of a construction general permit. Therefore, the Agency believes that the proposed dual approach of local controls and NPDES permitting most effectively ensures implementation of appropriate storm water control measures at construction sites while minimizing redundant controls. EPA solicits comment on this ``incorporation by reference'' approach. Today's proposal for permit requirements for regulated construction sites (described under Sec. 122.26(b)(15)(i)) would include developing a storm water pollution prevention plan (SWPPP). However, the current proposal for the municipal program minimum measure for construction site storm water control runoff does not contain an equivalent requirement--leaving a gap between the two areas of the proposal that address regulation of construction. EPA asks for comment as to the effect of this potential regulatory gap and whether the municipal program for construction should be made to include a requirement for developing a SWPPP. Specifically, EPA asks for comment on the effect this may have on the applicability of the provision allowing for an NPDES permit to incorporate by reference a qualifying local erosion and sediment control program. Currently, the proposal defines a local program as ``qualifying'' if it meets the minimum program requirements established in Sec. 122.34(b)(4). EPA is concerned as to whether this raises a potential inequitable regulatory scheme where certain construction sites would need to be covered under a SWPPP because they are outside a covered municipality while nearby construction sites would not need SWPPP coverage because they are within a municipality that has a construction program that meets Sec. 122.34(b)(4) requirements. EPA intends to facilitate the broadest application of the Sec. 122.44(s) provision to avoid duplication of programmatic requirements and paperwork redundancy and seeks comment on a means to best achieve this goal. In discussions with the Storm Water Phase II FACA Subcommittee, EPA considered structuring the permit requirements for the municipal construction program around five control principles that were to underlie the development of eight program elements to be implemented by the owner or operators of the municipal separate storm sewer system. The five principles were use of good site planning, minimization of soil movement, capture of sediment to the greatest degree possible, good housekeeping practices, and mitigation of the impacts of post- construction storm water discharges. The eight elements include a program description; coordination mechanisms with existing programs; requirements for nonstructural and structural BMPs; priorities for site inspections; educational and training measures; exemption of some construction activities due to limited impact; incentives, awards, or streamlining mechanisms available to developers; and description of staff and resources. Under this approach, any local program that incorporated these principles and elements into its storm water program would have been considered a ``qualifying'' local program that met Federal requirements. The elements suggested were modified from current requirements found at 40 CFR 122.26(d)(2)(iv)(D). After in-depth discussion with all stakeholders, many of these elements were considered to be more appropriate as guidance than as regulatory requirements for small municipal systems. Some stakeholders expressed concerns about the applicability and interpretation of the five control principles and eight program elements on a national level, specifically that a single, national specification would be unworkable. Therefore, EPA is proposing regulatory text intended to build on the fundamental aspects of the existing NPDES program for municipal storm water, while streamlining and improving certain aspects of the program applicable to owners or operators of regulated small municipal separate storm sewer systems. EPA requests comment on the appropriateness of the specified requirements for construction site control. v. Post-Construction Storm Water Management in New Development and Redevelopment. The Nationwide Urban Runoff Program study and more recent investigations indicate that prior planning and designing for the minimization of pollutants in storm water discharges is the most cost-effective approach to storm water quality management. Reducing the discharge of pollutants after the discharge enters a storm sewer system is often more expensive and less efficient than preventing or reducing the discharge of pollutants at the source. [[Page 1578]] Increased human activity associated with development often results in increased discharges of pollutants. In addition, sediment and debris transport and deposition can directly impair aquatic life. If the involved parties consider water quality impacts from the beginning stages of projects, new development and possibly redevelopment allow opportunities for more water quality sensitive projects. For example, minimization of impervious areas, maintenance or restoration of natural infiltration, wetland protection, use of vegetated drainage ways, and use of riparian buffers have been shown to reduce pollutant loadings in storm water runoff from developed areas. EPA encourages local governments to identify specific problem areas within their jurisdictions and initiate innovative solutions and designs to focus attention on those areas through local planning. In today's rule, EPA is proposing that owners or operators of regulated small municipal separate storm sewer systems develop, implement, and enforce a program that includes a plan to address storm water runoff from new development and redevelopment projects to their municipal separate storm sewer systems using site-appropriate and cost- effective structural and non-structural BMPs, as appropriate. The program would need to ensure that controls are in place that would prevent or minimize water quality impacts. The program should ensure adequate long-term operation and maintenance of BMPs. EPA would address questions regarding responsibility for long-term BMP operation and maintenance in guidance materials. EPA intends the term ``redevelopment'' to refer to alterations of a property that change the ``footprint'' of a site or building in such a way that results in the disturbance of equal to or greater than 1 acre of land. The term is not intended to include such activities as exterior remodeling, which would not be expected to cause adverse storm water quality impacts and offer no new opportunity for storm water controls. EPA intends to provide guidance to owners or operators of municipal systems and permitting authorities on appropriate planning considerations, structural and non-structural controls, and post- construction operation and maintenance of BMPs. Guidance materials would also address questions regarding responsibility for long-term operation and maintenance of storm water controls. EPA also intends to present a broad menu of options as guidance allowing for flexibility to accommodate local conditions. EPA proposes to recommend that municipalities establish requirements for the use of cost-effective BMPs that minimize water quality impacts and attempt to maintain pre- development runoff conditions. In other words, post-development conditions should not be different from pre-development conditions in a way that adversely affects water quality. The municipal program should include structural and/or non-structural BMPs. EPA encourages locally- based watershed planning and the use of preventative measures, including non-structural BMPs, which are generally lower in cost than structural BMPs, to minimize water quality impacts. Non-structural BMPs are preventative actions that involve management and source controls. Examples of non-structural BMPs include policies and ordinances that result in protection of natural resources and prevention of runoff. These include requirements to limit growth to identified areas, protect sensitive areas such as wetlands and riparian areas, minimize imperviousness, maintain open space, and minimize disturbance of soils and vegetation. Examples of structural BMPs include storage practices (wet ponds and extended-detention outlet structures), filtration practices (grassed swales, sand filters and filter strips), and infiltration practices (infiltration basins, infiltration trenches, and porous pavement). System owners or operators have significant flexibility both to develop this measure as appropriate to address local concerns and to apply new control technologies as they become available. Since storm water technologies are constantly being improved, EPA recommends that municipal requirements be responsive to these changes. EPA requests comment on the appropriateness of the specified requirements for post-construction storm water management in new development and redevelopment. vi. Pollution Prevention/Good Housekeeping for Municipal Operations. In today's proposal, any NPDES permit issued to an owner or operator of a regulated small municipal separate storm sewer system must, at a minimum, require the owner or operator to develop and implement a cost-effective operation and maintenance/training program with the ultimate goal of preventing or reducing pollutant runoff from municipal operations. EPA would encourage the owner or operator to consider the following in developing such a program: (1) Maintenance activities, maintenance schedules, and long-term inspection procedures for structural and other storm water controls to reduce floatables and other pollutants discharged from the separate storm sewers; (2) controls for reducing or eliminating the discharge of pollutants from streets, roads, highways, municipal parking lots, maintenance and storage yards, and waste transfer stations--including programs that promote recycling and pesticide use minimization; (3) procedures for the proper disposal of waste removed from the separate storm sewer systems and areas listed above in (2), including dredge spoil, accumulated sediments, floatables, and other debris; and (4) ways to ensure that new flood management projects assess the impacts on water quality and examine existing projects for incorporation of additional water quality protection devices or practices. In general, the requirement to develop and implement an operation and maintenance program, including local government employee training, is meant to ensure that municipal activities are performed in the most appropriate way to minimize contamination of storm water discharges, rather than requiring the municipality to undertake new activities. Proper operation and maintenance of the municipal separate storm sewer system and the storm water pollution control structures is essential to the success of the management program overall. The effective performance of this program measure would hinge on the proper maintenance of the BMPs utilized. Without proper maintenance, BMP performance declines significantly over time, with rates of decline varying by BMP type and site conditions. Additionally, BMP neglect may produce health and safety threats, such as structural failure leading to flooding, undesirable animal and insect breeding, and odors. Maintenance of structural BMPs could include activities to restore the integrity of infiltration control BMPs such as replacing upper levels of gravel; dredging of detention ponds; and repair of outlet structure integrity. Non-structural BMPs could also require maintenance over time. For example, educational materials might need to be updated periodically. EPA intends that controls for discharges from maintenance and storage yards listed above include controls for discharges from salt/ sand storage locations and snow disposal areas operated by the municipality. EPA encourages coordination with flood control managers for the purpose of identifying and addressing the environmental impacts of existing and proposed flood management activities. [[Page 1579]] Using existing storm water pollution prevention training materials that could be available from the NPDES authorities or from other organizations whose materials are approved by the local government, the program would need to include local government employee training addressing these prevention measures in government operations (such as park, golf course and open space maintenance; fleet maintenance; planning, building oversight and storm water system maintenance). In developing this minimum program element, the Agency sought to identify existing practices and training as a means to avoid duplication of efforts and reduce overall costs. EPA also sought to emphasize those practices or programs designed and undertaken by municipalities to address non-storm water problems but also that have storm water pollution prevention benefits. In addition, EPA designed this municipal program measure intending to create a streamlined version of the permit application requirements for medium and large municipal separate storm sewer systems described at 40 CFR 122.26(d)(2)(iv). The streamlined approach is intended to provide more flexibility for these smaller municipalities. Today's proposed requirements provide for a consistent approach to control pollutants from operation and maintenance among medium, large, and regulated small municipal separate storm sewer systems. By implementing a cost-effective operation and maintenance program, the municipal storm system owner or operator would serve as a model for the regulated community. Furthermore, the establishment of a long-term training and maintenance program could result in cost savings for the owner or operator by minimizing possible damage to the system from floatables and other debris and, consequently, reducing the need for repairs. The proposed minimum measure, which originated with members of the Storm Water Phase II FACA Subcommittee, is similar to the requirements of the existing storm water program. EPA requests comment on the appropriateness of the specified requirements for pollution prevention/ good housekeeping for municipal operations. vii. Satisfaction of Minimum Measure Obligations. Today's proposal would allow regulated small system owners or operators to satisfy their NPDES permit obligations for a minimum control measure by having another governmental or other entity perform the measure under the following circumstances: The other entity is implementing the control measure; the particular control measure (or component thereof) is at least as stringent as the corresponding NPDES permit requirements; and the owner or operator has requested, and the other entity has agreed to accept responsibility for, implementation of a particular control measure (or measures) on behalf of, and to satisfy, the owner or operator's municipal permit obligations. The owner or operator would need to specify in the Sec. 122.34(f)(3) reports submitted to the NPDES permitting authority when the owner or operator relies on another person to satisfy the permit obligations. The owner or operator would remain responsible for compliance with the permit obligations if the entity fails to implement the control measure (or component thereof). Therefore, EPA would encourage the owner or operator to enter into a legally binding agreement with that entity to minimize any uncertainty regarding compliance with the NPDES permit. In addition to the permittee-coordinated arrangement, today's proposal also includes a provision that would allow the NPDES permitting authority to recognize existing responsibilities among governmental entities for the control measures in an NPDES permit. For example, a State may have an existing erosion and sediment control program that adequately addresses construction site discharges to regulated small municipal separate storm sewer systems. The NPDES permitting authority in that State could draft the NPDES permit conditions such that the State is responsible for the construction site storm water discharge control minimum measure. Assuming that no other existing programs meet the requirements of the other minimum control measures, the municipality would be responsible for implementing those remaining minimum measures. Where the NPDES permitting authority recognizes existing responsibilities for one or more of the minimum control measures in an NPDES permit, these responsibilities would be waived from a regulated small system's storm water management plan and would remain waived as long as the other governmental entity implements the measure consistent with the proposed municipal program permit requirements at Sec. 122.34(b). When the NPDES permitting authority recognizes an existing responsibility in an NPDES permit, the permittee would not be obligated to notify the other governmental entity about the arrangement. Instead, EPA anticipates it would be the responsibility of the NPDES permitting authority to do so. b. Application Requirements, Including Notice of Intent As part of the municipal program, the owner or operator of a regulated small municipal separate storm sewer system would be required to identify and submit to the NPDES permitting authority, either in a notice of intent (NOI) to be covered under a general permit or in an individual permit application, the BMPs that the owner or operator would implement and the measurable goals for the minimum control measures discussed previously. In reviewing NOIs submitted by the owners or operators of municipal systems, the NPDES permitting authority would need to pay particular attention to the BMPs and measurable goals identified for municipal separate storm sewer systems that are located in impaired watersheds. Where specific measurable goals to satisfy minimum control measures in paragraphs (b)(3) through (b)(6) of Sec. 122.34 (illicit discharges detection and elimination, construction site storm water runoff control, post-construction storm water management in new development and redevelopment, pollution prevention/good housekeeping for municipal operations) are identified in an NOI, these goals would not constitute a condition of the NPDES permit, unless EPA or the State has provided or issued a menu of regionally appropriate, field-tested BMPs that it believes to be cost- effective. EPA has limited this provision to only four of the minimum control measures because the Agency does not believe that municipalities need the kind of technical assistance in developing measurable goals for public education and outreach or public involvement that might be essential in determining measurable goals for the other four minimum control measures. Measurable goals for the two minimum control measures of public education and outreach and public involvement would be required and would be enforceable permit conditions even without the issuance of the menu of BMPs. In the general permit NOI or individual permit application, the owner or operator would also be required to identify the month and year in which the owner or operator would start and would aim to complete each of the minimum control measures or indicate the frequency of the action. The NPDES permitting authority would specify a time period (of up to five years) for the owner or operator to [[Page 1580]] fully develop and implement the program. The owner or operator would also be required to identify in the general permit NOI or individual permit application the person or persons responsible for implementing or coordinating the municipal storm water program. EPA intends to provide guidance on the development of BMPs and measurable goals. EPA would later modify, update, and supplement this guidance based on the assessments of the municipal storm water program and research conducted over the next 13 years. EPA seeks comment on certain permit application provisions identified in today's proposed rule. First, EPA seeks comment on the potential implications of linking the enforceability of measurable goals identified in an NOI to EPA/State issuance of a menu of regionally appropriate BMPs. EPA also requests comment on the procedure for issuing a regionally appropriate menu of BMPs. For example, the menu could be developed and published concurrently with the general permit or prior to or after issuance of the general permit. Furthermore, commenters have raised concerns that if measurable goals become enforceable permit conditions without a menu of BMPs first being issued, the owner or operator of the municipal system would only propose easily attainable goals that might not achieve higher levels of water quality protection. Conversely, municipalities are concerned that measurable goals not become enforceable permit requirements until the permitting authority determines that they are, in fact, achievable through the use of cost-effective BMPs. EPA seeks comment on these concerns. Finally, EPA seeks comment on how an NOI form might best be formatted to allow for measurable goal information (e.g., through the use of check boxes or narrative descriptions) while taking into account the need to facilitate computer tracking. c. Evaluation and Assessment Under today's approach, owners or operators would be required to evaluate the appropriateness of their identified BMPs and progress toward achieving their identified measurable goals. The purpose of this evaluation is to determine whether or not the owner or operator is meeting the requirements of the minimum control measures identified in today's proposal. The NPDES permitting authority would be responsible for determining whether any monitoring needs to be conducted and could require monitoring in accordance with State/Tribe monitoring plans appropriate to the watershed. EPA does not encourage requirements for ``end-of-pipe'' monitoring for regulated small municipal storm sewer systems. Rather, EPA encourages permitting authorities to carefully examine existing ambient water quality and assess data needs. Permitting authorities should consider a combination of physical, chemical, and biological monitoring or the use of other environmental indicators such as exceedance frequencies of water quality standards, impacted dry weather flows, increased flooding frequency, and fish assemblage. (Claytor, R. and W. Brown. 1996. Environmental Indicators to Assess Storm Water Control Programs and Practices. Center for Watershed Protection, Silver Spring, MD.) Section II.L., Water Quality Issues, discusses monitoring in greater detail. As recommended by the Intergovernmental Task Force on Monitoring Water Quality (ITFM), the NPDES permitting authority would be encouraged to consider the following watershed objectives in determining monitoring requirements: (1) to characterize water quality and ecosystem health in a watershed over time, (2) to determine causes of existing and future water quality and ecosystem health problems in a watershed and develop a watershed management program, (3) to assess progress of watershed management program or effectiveness of pollution prevention and control practices, and (4) to support documentation of compliance with permit conditions and/or water quality standards. With these objectives in mind, the Agency encourages participation in group monitoring programs that would take advantage of existing monitoring programs undertaken by a variety of governmental and nongovernmental entities. Many States may already have a monitoring program in effect on a watershed basis. The ITFM report is included in the docket for this proposal (Intergovernmental Task Force on Monitoring Water Quality. 1995. The Strategy for Improving Water-Quality Monitoring in the United States: Final Report of the Intergovernmental Task Force on Monitoring Water Quality. Copies can be obtained from: U.S. Geological Survey, Reston, VA.). EPA expects that many types of entities would have a role in supporting group monitoring activities--including federal agencies, State agencies, the public, and various classes or categories of point source dischargers. It is possible that some regulated small municipal separate storm sewer systems would need to contribute to such monitoring efforts. EPA expects, however, that their participation in monitoring activities would be relatively limited. For purposes of today's proposal, EPA recommends that, in general, small municipalities not be required to conduct in the first permit term any additional monitoring beyond any they may be already performing. In the second and subsequent permit terms, EPA expects that some limited ambient monitoring might be appropriately required for perhaps half of the regulated small municipal separate storm sewer systems. EPA expects that such monitoring would only be done in several discrete locations for relatively few pollutants of concern. EPA does not anticipate ``end-of-pipe'' monitoring requirements for regulated small municipal separate storm sewer systems. EPA seeks comment on this approach, particularly from the perspective of dischargers other than small municipalities, on the sharing of responsibility for the support of monitoring activities. i. Recordkeeping. The NPDES permitting authority would be required to include at least the minimum appropriate recordkeeping conditions in each permit. Additionally, the NPDES permitting authority could specify that permittees develop, maintain, and/or submit other records to determine compliance with permit conditions. The owner or operator would need to keep these records for at least 3 years but would not be required to submit records to the NPDES permitting authority unless specifically directed to do so. The owner or operator would be required to make the records, including the storm water management program, available to the public at reasonable times during regular business hours (see 40 CFR 122.7 for confidentiality provision). The owner or operator would also be able to assess a reasonable charge for copying and to establish advance notice requirements, not to exceed 2 business days, for members of the public. ii. Reporting. Under today's proposal, the owner or operator of a regulated small municipal separate storm sewer system would be required to submit annual reports to the NPDES permitting authority for the first permit term. For subsequent permit terms, the owner or operator would need to submit reports in years 2 and 4 unless the NPDES permitting authority required more frequent reports. EPA determined that annual reports would be needed during the first 5-year permit term to help permitting authorities in track and assess the development of municipal programs, which should be well [[Page 1581]] established by the end of the initial term. Information contained in these reports could be used to respond to public inquiries. The report would need to include (1) the status of compliance with permit conditions, an assessment of the appropriateness of identified BMPs and progress toward achieving measurable goals for each of the minimum control measures, (2) results of information collected and analyzed, including monitoring data, if any, during the reporting period, (3) a summary of what storm water activities the permittee plans to undertake during the next reporting cycle, and (4) a change in any identified measurable goal or goals that apply to the program elements. The NPDES permitting authority would be encouraged to use a brief (e.g., two-page) reporting format to facilitate compiling and analyzing the data from submitted reports. The permitting authority would use the reports in evaluating compliance with permit conditions and, where necessary, would modify the permit conditions to address changed conditions. EPA requests comment on the appropriate content of the reports and the timing of the submittal. iii. Permit-As-A-Shield. Section 122.36 describes the NPDES ``permit-as-a-shield'' coverage offered by section 402(k) of the CWA. Section 402(k) provides that compliance with an NPDES permit would be deemed compliance, for purposes of enforcement under CWA sections 309 and 505, with CWA sections 301, 302, 306, 307, and 403, except for any standard imposed under section 307 for toxic pollutants injurious to human health. EPA's Policy Statement on Scope of Discharge Authorization and Shield Associated with NPDES Permits, issued on July 1, 1994, and revised by EPA's policy memorandum on the same subject issued on April 11,1995, provides additional information on this matter. d. Other Applicable NPDES Requirements Any NPDES permit issued to an owner or operator of a regulated small municipal separate storm sewer system would also need to include other applicable NPDES permit requirements and standard conditions, specifically those requirements and conditions at 40 CFR 122.41 through 122.49 (EPA recognizes that reporting requirements for regulated small municipal separate storm sewer systems would be governed by proposed Sec. 122.34 and not the existing requirements for medium and large municipal separate storm sewer systems at Sec. 122.42(c)). In addition, the NPDES permitting authority is encouraged to consult the Interim Permitting Approach, issued on August 1, 1996. The discussion on the Interim Permitting Approach in Section II.L.1, Water Quality Standards, provides more information. Members of the municipal caucus expressed considerable concern that imposing these conditions would, in effect, undermine the intent of the program developed in consultation with the Storm Water Phase II FACA Subcommittee--to develop a program with a simplified set of permit requirements based on the implementation of BMPs. EPA does not believe that this is a concern. The provisions of Secs. 122.41 through 122.49 establish permit conditions and limitations that are broadly applicable to the entire range of NPDES permits. These provisions should be interpreted in a manner that is consistent with provisions that address specific classes or categories of discharges. For example, Sec. 122.44(d) is a general requirement that each NPDES permit shall include conditions to meet water quality standards. This requirement would be met by the specific approach outlined in today's proposal for the implementation of BMPs as the most appropriate form of effluent limitations to satisfy technology requirements and water quality-based requirements (see the introduction to Section II.H.3, Municipal Permit Requirements, Section II.H.3.g, Reevaluation of Rule, and the discussion of the Interim Permitting Policy in Section II.L.1.a. below). e. Enforceability NPDES permits are federally enforceable. Violators may be subject to the enforcement actions and penalties described in CWA sections 309, 504, and 505 or under appropriate State or local law. Compliance with a permit issued pursuant to section 402 of the Clean Water Act would be deemed compliance, for purposes of sections 309 and 505, with sections 301, 302, 306, 307, and 403 (except any standard imposed under section 307 for toxic pollutants injurious to human health). f. Deadlines Under Sec. 122.32(a)(1) of today's proposed rule, which automatically designates all small municipal separate storm sewers located in an ``urbanized area,'' owners or operators of regulated small municipal separate storm sewer systems would need to seek coverage under an NPDES permit within 3 years and 90 days from the date of publication of the final rule. Assuming a March 1, 1999, final rule, the resulting deadline would be May 31, 2002--this allows 90 days after the issuance of a general permit to submit the NOI. Owners or operators of regulated small municipal separate storm sewer systems that choose to be a co-permittee with an adjoining municipality or other governmental entity with an existing NPDES storm water permit would need to apply for a modification of that permit by May 31, 2002-- allowing for 90 days as well. EPA recognizes that the use of the ``latest'' Decennial Census by the Bureau of the Census as a basis for nationwide designation raises an issue regarding applicable deadlines for municipalities brought into the program due to 2000 Census calculations. EPA proposes that small municipal separate storm sewer systems that are automatically designated as of the 2000 Census would need to seek coverage under an NPDES permit within 3 years and 90 days from the date of publication of the final rule. Since the official Bureau of the Census urbanized area calculation for the 2000 Census is expected to be published by August 2001, this proposed deadline would allow the affected municipalities to have approximately 9 months notice to prepare for compliance under the applicable permit. EPA invites comment on this proposed deadline for municipalities affected by the 2000 Census. EPA also seeks comment on the appropriateness of the range of time allowed for regulated small municipal separate storm sewer systems to prepare an NOI or permit application, which varies from 3 years and 90 days (if automatically designated by the 1990 Census) to 60 days (if designated by the NPDES permitting authority under proposed Sec. 122.32(a)(2)), with 9 months in between (if automatically designated by the 2000 Census). As stated above, owners or operators of regulated small municipal separate storm sewer systems designated by the NPDES permitting authority on a local basis under Sec. 122.32(a)(2) would need to seek coverage under an NPDES permit within 60 days of notice, unless the NPDES permitting authority specifies a later date. EPA seeks comment specifically on whether 60 days provides adequate time for the preparation of an NOI or permit application or if a 90 day time period would be more appropriate. g. Reevaluation of Rule The municipal caucus of the Storm Water Phase II FACA Subcommittee asked EPA to demonstrate its commitment to revisit today's proposed rule as it applies to municipal separate [[Page 1582]] storm sewer systems and make changes where necessary after evaluating the storm water program and researching the effectiveness of municipal BMPs. Today, EPA is proposing Sec. 122.37 to commit the Agency to revisit the regulations for the municipal storm water program, at Secs. 122.32 through 122.26 and 123.35, after completion of the first two permit terms. The Agency intends to use this time to work closely with stakeholders on research efforts. Gathering and analyzing data related to the storm water program, including data regarding the effectiveness of BMPs, during this time would be critical to EPA's storm water program evaluation. The Agency does not intend to change today's proposed NPDES municipal storm water program until the end of this period, except under the following circumstances: a court decision requires changes; a technical change is necessary for implementation; or the CWA is modified, thereby requiring changes. After careful analysis, the Agency might also consider changes from consensus-based stakeholder requests for newly regulated municipal systems. EPA would apply the August 1, 1996, Interim Permitting Approach to today's proposed program during this interim period and would encourage all permitting authorities to use this approach in storm water permits for newly regulated municipal systems and in determining municipal requirements under a TMDL approach. After careful consideration of the data, EPA would make modifications as necessary. EPA is seeking comment on the proposal to re-evaluate the rule after 13 years from the date of publication of the final rule (i.e., following the completion of the first two permit terms). In addition, proposed Sec. 122.37 states that EPA strongly recommends that no additional requirements beyond the minimum control measures be imposed on regulated municipal separate storm water systems without the agreement of the affected municipal separate storm water system, except where adequate information exists in approved TMDLs or equivalents of TMDLs to develop more specific measures to protect water quality or until EPA's comprehensive evaluation is completed. The wasteload allocations that form part of approved TMDLs or equivalents of TMDLs would constitute ``adequate information to develop more specific conditions or limitations to meet water quality standards.'' EPA regulations at 40 CFR 122.44(d)(1)(vii) currently require that effluent limits in NPDES permits be consistent with assumptions and requirements of any available wasteload allocations for the discharge contained in EPA-approved TMDLs. Consequently, where wasteload allocations have been established for a municipal storm water source in approved TMDLs, the permit would need to include terms and conditions consistent with the assumptions and requirements of the wasteload allocations. These terms and conditions might include non-numeric requirements, such as implementation of BMPs coupled with some means to monitor effectiveness, if they are consistent with the assumptions and requirements of the conditions of the wasteload allocations. I. Other Designated Storm Water Discharges 1. Background Under section 402(p)(6), EPA is proposing to regulate categories of storm water discharges in addition to the municipal separate storm sewer systems described earlier. The proposal would designate certain construction activities for regulation as ``storm water discharges associated with other activity.'' Specifically, such discharges would include storm water discharges from construction sites disturbing equal to or greater than 1 acre and less than 5 acres, unless the NPDES permitting authority waives the application requirements. Today's action also would maintain the existing application deadline from the August 7, 1995, rule for municipally owned or operated sources of industrial storm water exempted from the October 1, 1994, compliance deadline by the Intermodal Surface Transportation and Efficiency Act of 1991 (and the Water Resources Development Act of 1992). The proposed regulation, including application deadlines, for each of these classes is further explained below. 2. Construction Today's proposal to regulate certain storm water discharges from construction sites disturbing less than 5 acres is consistent with the 9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992). In that case, the court remanded portions of the existing storm water regulations related to discharges from construction sites. The existing regulations define ``storm water discharges associated with industrial activity'' to include only those storm water discharges from construction sites disturbing 5 acres or more of total land area (see 40 CFR 122.26(b)(14)(x)). In its decision, the court concluded that the 5-acre threshold was improper because the Agency had failed to identify information ``to support its perception that construction activities on less than 5 acres are non-industrial in nature'' (966 F.2d at 1306). The court remanded the exemption to EPA for further proceedings (966 F.2d at 1310). EPA's objectives in today's proposal include an effort to (1) address the 9th Circuit remand, (2) address water quality concerns associated with construction activities that disturb less than 5 acres of land, and (3) balance conflicting recommendations and concerns of stakeholders. EPA responded to the 9th Circuit's request for further proceedings by consulting with the Storm Water Phase II FACA Subcommittee regarding possible approaches for addressing the remanded provision. Although the Subcommittee was not able to reach consensus on any of the issues relating to the construction remand, Subcommittee members provided considerable feedback concerning a variety of possible approaches. Today's proposal represents the Agency's effort to balance the concerns raised by various subcommittee representatives. This proposal would designate discharges from construction activities that disturb between 1 and 5 acres as ``discharges associated with other activity'' under section 402(p)(6), rather than as ``discharges associated with industrial activity'' under section 402(p)(2)(B). Although a size criterion alone may be an indicator of whether runoff from construction sites between 1 and 5 acres is ``associated with industrial activity,'' the Agency is instead proposing to rely on a size threshold in tandem with provisions that allow for designations and waivers based on potential for ``predicted water quality impairments'' to regulate such construction sites under section 402(p)(6) for the sake of simplicity and certainty and, most importantly, to protect water quality consistent with the mandate of section 402(p)(6). The proposal would include extended application deadlines for this new category of dischargers under the authority of section 402(p)(6) (see * 122.26(e)(1)(iii)). The proposed designation would also be consistent with EPA's earlier proposal to regulate this category of discharges as ``discharges associated with industrial activity'' (55 FR 48035-36). Today's proposal would designate storm water discharges from certain construction sites under 5 acres for regulation based on the authorities of section 402(p)(6) because such sources should be regulated to protect water quality. Section I.A.1., under Construction Site Runoff, provides a detailed discussion of water quality [[Page 1583]] impacts resulting from construction site storm water runoff. Under section 402(p)(6), such designation also carries with it ``expeditious deadlines,'' which are important to ensure a nationally consistent timeperiod for the development and implementation of a program to regulate these sources. EPA invites comment on how the Agency should codify this proposed designation, as well as the statutory basis upon which EPA should rely for regulation of storm water discharges from construction sites less than 5 acres. The proposed regulatory changes for storm water construction activities are not proposed in the same ``question and answer'' format as the other regulations proposed because ``storm water discharges associated with other activity'' would be included as a new category of dischargers in the NPDES regulations for storm water. a. Scope The definition of ``storm water discharges associated with other activity'' would include construction activities, including clearing, grading, and excavating activities, that result in the disturbance of equal to or greater than 1 acre and less than 5 acres (see new language at Sec. 122.26(b)(15)). Such activities might include road building; construction of residential houses, office buildings, or industrial buildings; or demolition activity. Sites disturbing less than 1 acre would be included if they were part of a ``larger common plan of development or sale'' with a planned disturbance of equal to or greater than 1 and 5 acres. A ``larger common plan of development or sale'' would mean a contiguous area where multiple separate and distinct construction activities might be occurring at different times on different schedules under one plan (e.g., a housing development of five \1/4\ acre lots) (Sec. 122.26(b)(15)(i)(A)). Such sites would be required to seek coverage under an NPDES permit regardless of the number of lots in the larger plan because designation for permit coverage would be based on the total amount of disturbed land area. This proposed designation attempts to address the potential cumulative effects of numerous construction activities concentrated in a given area. These requirements would not apply to agricultural or silvicultural activities, which are exempt from NPDES permit requirements under 40 CFR 122.3. Although all construction sites less than 5 acres could have a significant water quality impact cumulatively, EPA today is proposing to require that only construction sites that disturb land equal to or greater than 1 acre seek coverage under an NPDES permit. Categorical regulation of construction below this 1-acre threshold would overwhelm the resources of permitting authorities. The NPDES permitting authority could, however, designate for regulation those construction activities that disturb below 1 acre of land if a watershed or other local assessment indicated the need to do so. Furthermore, the permitting authority could designate any other construction activity ``based on the potential for adverse impact on water quality or for significant contribution of pollutants'' (see new Sec. 122.26(a)(9)(i)(D) and Sec. 122.26(b)(15)(i)(B)). The proposed 1-acre threshold is based on a balanced consideration of recommendations from numerous stakeholders participating in the Storm Water Phase II FACA Subcommittee process. In today's proposed rule, EPA is attempting to regulate additional construction sites to better protect the nation's waters, while remaining sensitive to a concern that the Agency not regulate construction sites that might not have adverse water quality impacts. EPA believes that today's proposal would successfully accomplish this objective by coupling a 1-acre threshold that includes waiver options for sites that have been determined not to impact water quality with the provision that allows the designation authority to include sites below 1 acre that do impact water quality. Specifically, construction activity equal to or greater than 1 acre and less than 5 acres would be automatically designated except in those circumstances where owner or operator certifies that any of three specific waiver circumstances (described below) would apply. As mentioned previously, construction activity that disturbs less than 1 acre would not be automatically designated, but the NPDES permitting authority could designate such areas for permitting where there is reason to believe that impacts to water quality are likely to occur from activity on these sites. For example, if a trout hatchery area is located downstream from the proposed less than 1-acre site, the permitting authority would likely want to control the construction activity's impact on trout egg survival. EPA believes that coupling categorical designations with waivers would be necessary to address the challenge of providing a technical justification for a nationwide size threshold considering the hydrologic, climatologic, geographic, and geologic variations nationwide. EPA invites comment regarding this approach. EPA also examined alternative size thresholds, including 0.5 acre, 1 acre, and 2 acres. EPA had difficulty evaluating the alternative size thresholds because, while directly proportional to the size of the disturbed site, the water quality threat posed by construction sites of differing sizes varies nationwide, depending on the local climatological, geological, geographical, and hydrological influences. In the interest of nationwide consistency, EPA does not propose to allow permitting authorities to set their own size thresholds. By selecting the 1 acre size threshold coupled with waivers and designation, EPA sought to make the regulation consistent on a national basis and to also provide permitting authorities with the opportunity to further designate those activities causing water quality impairments regardless of site size. Thus, oversight of discharges from construction site activities less than 5 acres would be consistent on a national basis and would ultimately allow local authorities to address those activities causing water quality impairment regardless of any cutoff or threshold acreage. b. Waivers Under the proposal, NPDES permitting authorities would have the option of providing a waiver to construction site owners or operators from permit requirements in three circumstances. The first waiver would be based on ``low predicted rainfall potential.'' The permitting authority would determine which times of year, if any, the waiver opportunity would be available for construction sites based on a table of R values published in the U.S. Department of Agriculture (USDA) Agricultural Handbook 703 (Renard, K.G., Foster, G.R., Weesies, G.A., McCool, D.K., and D.C. Yoder. 1997. Predicting Soil Erosion by Water: A Guide to Conservation Planning with the Revised Universal Soil Loss Equation (RUSLE). U.S. Department of Agriculture Handbook 703. Copies may be obtained from USDA-ARS, Southwest Watershed Research Center, 2000 East Allen Road, Tucson, AZ 85719.). These tables summarize average periodic rainfall data on a geographic basis throughout the United States. The second waiver would be based on ``low predicted soil loss.'' Under this waiver, the permittee would apply the Revised Universal Soil Loss Equation (RUSLE) to determine whether or not the second waiver would be available. The third waiver would be based on a consideration of ambient water quality. This waiver would be available after [[Page 1584]] development and implementation of TMDLs for the pollutants of concern from storm water discharges associated with construction site storm water runoff. This waiver would also be available after development and implementation of a TMDL-like allocation process in water bodies that are not impaired. Note that TMDLs are only required for water bodies listed under CWA section 303(d). The first waiver would be time-sensitive and would be dependent on when during the year a construction activity takes place, how long it lasts, and the expected rainfall during that time. The waiver is intended to exempt the requirements for a permit when and where the permitting authority expects negligible rainfall. EPA anticipates that this waiver opportunity would respond to concerns about the requirement for a permit when it does not rain, especially in the arid western States. Under this waiver provision, the permitting authority could identify timeperiods when construction activity could be waived from permitting requirements where the rainfall erosivity factor (``R'' in the Revised Universal Soil Loss Equation (RUSLE)) is less than two during the period of construction activity for specific areas of the State. EPA believes that those areas receiving negligible rainfall during certain times of the year are unlikely to have storm water events that would adversely impact receiving streams and, consequently, BMPs would not be necessary on those smaller sites. This waiver would be most applicable to the arid regions of the country where the occurrence of rainfall follows a cyclic pattern--between no rain and extremely heavy rain. Review of rainfall records for these areas indicates that there are periods (up to 6 months) during which the number of events and quantity of rain are low enough that storm water runoff from small sites is predicted to be minimal. Default conditions that were included in this examination consisted of slope length (300 feet), slope steepness (3%), soil type (silt), no natural cover material, and no erosion control practices in place. The second option for a waiver would be based on ``low predicted soil loss'' and would be available where application of the RUSLE by the permittee indicated negligible predicted soil loss. Developed initially by the USDA as a predictive tool to evaluate the potential for soil loss from agricultural lands at various times of the year and on a regional basis, the Universal Soil Loss Equation (USLE) was identified as a technique which could be useful in predicting construction site soil losses in the early 1970s (Wischmeir and Meyer, 1973). USLE is a widely used and easily accessible equation which predicts soil loss from four variables; rainfall erosivity, soil erodibility, length of slope, and steepness of slope. A refinement of USLE is reflected in the Revised Universal Soil Loss Equation (RUSLE), which provides a broader range of data within the individual variable. Several permitting authorities have recommended the utilization of the USLE or RUSLE for predicting construction site soil losses in their guidance documents that support implementation of the existing storm water program. Today, EPA is proposing a modified use of the equation for purposes of predicting soil erosion rates from small construction sites using the RUSLE. The equation comprises the variables rainfall erosivity (R), soil erodibility (K), slope length (L), slope steepness (S), cover- management factor (C), and the support practice factor (P). The equation is: A-RKLSCP where A is the average soil erosion rate in tons per acre per year. This waiver provision would be applicable on a case-by-case basis where the annual soil loss rate for the period of construction for a site would be less than 2 tons/acre/year. The annual soil loss rate of less than 2 tons/acre/year would be calculated through the use of the equation, assuming the constants of no ground cover and no runoff controls in place. For the purposes of today's proposal, RUSLE would be used to predict where storm water discharges associated with construction activity (i.e., soil disturbance through clearing, grading, and excavating would not be expected to adversely affect water quality.) The third waiver would be available where the State (or EPA) has completed either wasteload allocations that are part of TMDLs that address the pollutants of concern or a comprehensive watershed plan, implemented for the water body, in which the equivalents of TMDLs have been done as part of the watershed plan addressing the pollutants of concern from construction activities. The permitting authority would need to reflect relevant components of the comprehensive watershed plan or TMDLs in NPDES permits. The watershed plan, or TMDLs, would need to demonstrate with reasonable assurance that load reductions take place pursuant to CWA section 303(d) and that such discharge does not cause or have a potential to cause water quality impacts. In determining this waiver, EPA (if the NPDES permitting authority) might rely on a State's wasteload allocations that are part of TMDLs or a State's comprehensive watershed plan in which the equivalents of TMDLs has been done as part of the watershed plan. To qualify for this waiver option, the owner or operator would need to certify that the construction activity will take place, and storm water discharges will occur, within an area covered either by the TMDLs or comprehensive watershed plan. By using the term ``comprehensive watershed plan,'' EPA recognizes that TMDLs address ``impaired waters'' and that there may be TMDL-like activities on waters that are not found to be ``impaired.'' It is expected that when TMDLs are done there may be a determination, in some cases, that certain classes of sources such as small construction sites would not have to control their contribution of pollutants of concern to the waterbody in order for it to be in attainment (i.e., these sources are not assigned wasteload allocations) and, therefore, implementation of storm water controls would not be necessary under today's proposed storm water program. EPA is continuing to review technical information to determine whether the waiver thresholds for rainfall erosivity and annual soil loss are the appropriate thresholds. The agency is also interested in comment regarding the feasibility of these waiver provisions. For example, concerns have been raised that application of the second waiver (case-by-case basis where the annual soil loss rate for the period of construction for a site would be less than 2 tons/acre/year) might not sufficiently protect sensitive ecosystems or species. Impacts from fine sediment could be heightened for coral reef systems or for extremely oligotrophic systems, such as Lake Tahoe in Nevada or Crater Lake in Oregon (see the general discussion of construction impacts in Section I.A.1., Construction Site Runoff). In addition, concerns have been raised that the second waiver provision would be too complicated and, thus, misapplied because the variables and assumptions in the RUSLE would be misinterpreted or misrepresented. EPA encourages the submission of data and other information that could ensure a waiver process that is fair and easily applied while providing sufficient protection for sensitive ecosystems. Preliminary comments on the proposed waiver provisions also raised a process issue regarding how a permittee would qualify for a waiver. Today's proposal includes a certification process whereby the [[Page 1585]] permittee would certify to the NPDES permitting authority that it meets the particular waiver criteria or waiver requirements applicable in a particular State or watershed (see proposed Sec. 122.26(b)(15)(i)(A)(1)-(3)). EPA invites comment on such a certification process and requests comment on any other similar process that could reduce the waiver processing burden for the NPDES permitting authority and the permittee while ensuring that waivers are granted only for those circumstances applicable under one of the three waiver options. EPA also seeks comment from permitting authorities on how they envision the process of implementing waivers for construction activity based on TMDLs or TMDL-type assessments under watershed plans. EPA invites comment on concerns that waivers might be improperly utilized in an effort to provide relief to regulated entities for reasons unrelated to water quality. In particular, concerns have been raised that an NPDES permitting authority might redirect resources from other environmental programs in order to develop a watershed approach that promotes the issuance of the greatest possible number of waivers. In addition to waivers, the Agency is also considering possible approaches for providing incentives for local decisionmaking that would limit the adverse water quality impact associated with uncontrolled growth in a watershed. In situations where there are special controls or incentives (e.g. transferable development rights, traditional neighborhood development ordinances) in place directing development toward compact/mixed use development and away from wetlands, open space, or other protected lands, it may be possible to provide some relief to small construction sites in areas of less dense development, provided that the average development densities are very low (e.g., less than one unit per 25 acres). In addition, relief from requirements may also be appropriate where redevelopment construction replaces existing development and the new development results in a net water quality benefit. This type of incentive could be a consideration in development of TMDLs by State or local authorities. Based on a TMDL that recognizes that the discharges from areas of less development do not cause or have potential to cause water quality impacts, relief from small construction site permitting requirements could be granted. EPA solicits comment on this approach and any other recommendations for the use of such incentives. c. Permit Process and Administration As with any owner or operator of a point source discharge, the operator of the construction site would be responsible for applying for the NPDES permit as required by Sec. 122.21(b). The operator of a construction activity would be the party or parties that either individually or collectively meet the following two criteria: (1) operational control over the site specifications, including the ability to make modifications in the specifications; and (2) day-to-day operational control of those activities at the site necessary to ensure compliance with permit conditions. If more than one party meets these criteria, then each party involved would need to be a co-permittee with any other operators. The operators could be the owner, the developer, the general contractor, or individual contractors. As mentioned previously, the Agency has proposed extended application deadlines for small construction sites at Sec. 122.26(e)(1)(iii). EPA also considered whether NOIs should be required of construction sites less than 5 acres. Requiring an NOI allows for greater accountability by, and tracking of, dischargers. It allows for better outreach to the regulated community, uses an existing and familiar mechanism, and is consistent with the existing requirements for construction activities. EPA recognizes, however, the paperwork burden for both the regulated community and regulators. The Agency is proposing not to specify the NOI requirements for NPDES general permits for storm water at Sec. 122.28 to address the storm water discharges from construction activities proposed to be regulated at Sec. 122.26(b)(15). EPA believes that this approach would provide the NPDES permitting authority with the discretion to decide whether or not to require NOIs for construction activity less than 5 acres. Thus, the proposal would increase flexibility for the permitting authority regarding program implementation. The Agency invites comment on whether NOI submission should be a requirement for general permits for construction activity less than 5 acres. EPA expects that the vast majority of discharges of storm water associated with other activity identified in Sec. 122.26(b)(15) would be regulated through general permits. In the event that an NPDES permitting authority decides to issue an individual construction permit, however, individual application requirements for these construction sites would be found at Sec. 122.26(c)(1)(ii). Except for application deadlines and NOIs under general permits, the permit application requirements would be identical to those applicable to storm water discharges associated with industrial activity under the existing NPDES storm water program. EPA proposes to revise Sec. 122.26 accordingly. For any discharges of storm water associated with other activity identified in Sec. 122.26(b)(15) that are not authorized by a general permit, a permit application made pursuant to Sec. 122.26(c) would need to be submitted to the Director by 3 years and 90 days after issuance of the final rule. All regulated sources would be required to seek coverage under an NPDES permit regardless of whether they discharge directly to waters of the United States or through a municipal separate storm sewer system to waters of the United States. The Storm Water Phase II FACA Subcommittee also identified issues regarding linear construction projects (e.g., roads, highways, pipelines) that cross several jurisdictions. Some Subcommittee members were concerned about having to comply with multiple sets of requirements from various jurisdictions, including multiple local governments and States. Because EPA cannot issue NPDES permits in States authorized to implement the NPDES program and because EPA cannot preempt other more stringent local and State requirements, EPA is limited in its options to address these concerns. EPA believes that the option for incorporating by reference the local or State requirements (see discussion in Section II.I.2.d., Cross-Referencing State/Local Erosion and Sediment Control Programs) would limit the administrative burden on the operator responsible for discharges from linear construction projects. The operator could implement the most comprehensive of the various requirements for the whole project to avoid differing requirements for different sections of the project. In addition, EPA notes that discharges of dredged or fill material into waters of the United States that are regulated under section 404 of the CWA do not require NPDES permits (40 CFR 122.3(b)). On a similar note, one comment or requested exemptions for ``routine maintenance'' activities such as repairing potholes, clearing out drainage ditches, and maintaining fire breaks, because these activities often involve rights-of-way extending across multiple regulatory jurisdictions. The commenter suggested that, at most, these activities by required to adhere to generic best [[Page 1586]] management practices. The Agency is interested in comments on how such an exemption would work, what the criteria for such an exemption would be, and the appropriate BMPs for such sites. EPA also invites comment on recordkeeping requirements for today's proposed rule regarding construction. The NPDES program requires that the entity submitting the NOI keep its records on file for three years. Given that some smaller construction activities may last less than a year, some recommendations suggest that this file retention requirement be modified or deleted for such sites. EPA invites comment on appropriate and reasonable recordkeeping requirements. d. Cross-Referencing State/Local Erosion and Sediment Control Programs In developing the permit requirements for designated construction sites less than 5 acres, members of the Storm Water Phase II FACA Subcommittee asked EPA to try to minimize redundancy in the construction permit requirements. As previously discussed in the Construction Site Storm Water Runoff Control discussion (see Section II.H.3.a., Minimum Control Measures), the Agency is proposing to allow permitting authorities to incorporate by reference the requirements of qualifying State, Tribal, or local erosion and sediment control programs. The NPDES permitting authority would, of course, retain the authority to deny coverage under the general NPDES permit, disapprove inclusion of alternative requirements in the general permit, and could require that designated general permit applicants apply for an individual NPDES permit. EPA envisions that this incorporation by reference approach would apply not only to the proposed newly regulated storm water discharges from construction sites between 1 and 5 acres, but also to discharges from larger construction sites already covered by the existing storm water regulations provided the program meets best available technology (BAT) requirements. Under existing regulations, storm water discharges ``associated with industrial activity'' are subject to the same technology-based standards as any other discharge under the CWA (except publicly owned treatment works and municipal separate storm sewer systems) (see CWA section 402(p)(3)(A)). The Agency invites comment on whether the imposition of controls designed to satisfy the proposed Sec. 122.34(b) would assure compliance with CWA section 402(p)(3)(A) for discharges from construction sites over 5 acres. Note that the Agency does not intend that incorporation by reference of qualifying programs would relieve construction site discharges ``associated with industrial activity'' from the applicable requirements of CWA section 301. EPA believes that this approach would best balance the need for consideration of specific local requirements and local implementation with the need for Federal and citizen oversight, and would extend supplemental NPDES requirements to construction sites. EPA solicits comment on this approach. In a somewhat different context, municipal representatives recommended that construction activities undertaken by municipalities be covered by the municipal storm water permit rather than under a separate, distinct storm water permit for construction activity. The Agency agrees that this would be a reasonable approach. The Agency explored several possible ways to make such an approach possible during the development of today's proposal, and feels that there are some options that could achieve program objectives. One option would be to simply relieve municipalities that would be covered under today's proposal of requirements to submit an NOI for the general permit covering construction activity. Under this option, municipalities would still be subject to both types of permit, but would be relieved of the paperwork associated with filing NOIs. This option might require a revision to existing 122.28(b)(2)(v). Another option to address this concern would be to issue individual permits to municipalities seeking such a ``one-stop shopping'' approach that would include provisions covering the municipal storm water program and construction activity conducted by the municipality. Under such an option, municipalities might need to submit individual permit applications and the NPDES permitting authority might have to issue many more municipal permits. Under a third option, the general permit issued to small municipalities would include municipal storm water program requirements as well as construction site discharge components. This option would result in the issuance of a more complex general permit than EPA currently envisions for small municipalities. This complexity could be minimized, however, by organizing the general permit into distinct modules, one dealing with the six minimum measures, one with municipal construction, and possibly one with municipal industrial facilities (see Section II.I.3, ``Other Sources'' below). Alternatively, municipal general permits could potentially reference provisions included in construction general permits. As a practical matter, the controls for municipally-owned or operated construction would presumably dovetail with the requirements of the municipal minimum control measure for construction, at least for sites between 1 and 5 acres (construction less than 5 acres would have to meet BAT). The Agency seeks further input on these possible approaches and others that could be considered. Specifically, how would such an approach work, what would the permit look like, who would be covered, and what would be the responsibilities of covered municipalities. In a similar vein, industrial representatives recommended that construction activities undertaken by permitted industrial storm water facilities be covered by the industrial storm water permit. Again, the Agency agrees with the concept. One option contemplated by the Agency would be to include in industrial storm water permits requirements for construction undertaken by permitted industrial facilities. Another option would be to cross-reference construction general permit provisions in industrial general permits. The Agency seeks comment on these possible approaches and others that could be considered. e. Alternative Approaches As previously discussed, EPA also examined size thresholds other than one acre for regulation. Although a range of size thresholds was mentioned in stakeholder comments, no data were offered to support such alternatives. The Agency solicits comments that would assist the Agency in making an informed decision as to an appropriate threshold related to environmental effect. Alternatively, the Agency also solicits comment on an approach by which only those construction sites located within urbanized areas would be automatically subject to permitting requirements. Under such an alternative, small construction sites outside urbanized areas would not be required to be covered by an NPDES permit unless specifically designated by the permitting authority on a case-by-case basis. Some stakeholders asked EPA to consider allowing storm water discharges associated with construction activities between 1 and 5 acres to be regulated solely under municipal storm water programs where discharges to a municipal separate storm sewer system [[Page 1587]] are subject to a permit, rather than requiring construction site discharges to be subject to both NPDES permit requirements and municipal program requirements. Under such an approach, construction sites would only be subject to the requirements and oversight of a qualifying local program. The Agency has described the ``incorporation by reference'' approach of today's proposal and the rationale for the proposed approach elsewhere in this preamble. If EPA adopted this ``qualifying local program'' alternative, construction site operators in qualifying municipalities would not be subject to the requirements of an NPDES permit. The Agency solicits comment on this particular alternative and seeks input specifically on the effectiveness of local erosion and sediment control programs in the absence of NPDES permits incorporating such local programs. The Agency also solicits comment on the appropriate qualifications to establish for municipalities to qualify under such an alternative. EPA considered several other alternatives for controlling construction storm water discharges on sites less than 5 acres, including state/local implementation only, Federal requirements/ guidelines for local erosion and sediment control programs, and State- developed requirements. Small entity representatives recommended that EPA only establish a voluntary program based on EPA guidance, and perhaps including incentives for small site operators. This would effectively translate into a program which would not require such sites to be covered by an NPDES permit unless they were specifically designated by the permitting authority on a case-by-case basis. One commenter raised concerns that small site operators may lack the resources to put together a good site plan, which would likely be required under the proposed approach. EPA seeks comment on these alternatives, as well, including comment on how such programs have worked where they have been in effect. In evaluating options to administer the storm water control program for discharges from construction sites, EPA considered an owner or operator certification program that would have allowed the owner or operator, or authorized representative, of a construction firm to apply for coverage once for all the firm's activities in one jurisdiction for the term of the NPDES permit. Focusing on operators in the ``construction industry'' (regardless of the size of the construction site) would have more closely paralleled the existing storm water program for discharges ``associated with industrial activity.'' This option would have allowed for the coverage of each site by submittal of one NOI, thereby reducing the paperwork burden substantially without sacrificing accountability. This option would have applied to all regulated construction site discharges, regardless of size. Homeowners who performed construction activities on their own property would have been exempt from the requirements for a permit under this option. This option would have focused instead on the construction ``industry.'' This option also would have resulted in a different proposal for municipal programs to control construction site discharges. Concerns with this option included issues regarding: identification of the responsible parties onsite (e.g., whether all parties could reasonably be held responsible for all permit conditions) and site-by-site identification of construction discharges for tracking compliance with permit conditions. Such a change also would have affected operators discharging storm water from existing, larger regulated construction sites by restructuring the entire regulatory scheme to focus on the ``industry'' of construction site operators, thus creating significant confusion among regulated entities and disruption in regulatory processes. Nonetheless, EPA invites comment on the option to establish what would amount to an NPDES-based ``licensing'' program for construction site operators within an NPDES jurisdiction (usually within State or Tribal boundaries). Industrial stakeholders recommended that the regulation of construction site discharges under section 402(p)(6) should distinguish between ``low intensity'' small construction and ``high intensity'' small construction. While EPA proposes case-by-case waiver opportunities for small construction discharges (i.e., the second waiver opportunity for predicted soil loss of less than 2 tons/acre/ year), the industrial commenters recommended that the designation of small construction site discharges categorically distinguish and exempt ``low intensity'' construction activity from the provisions of the proposed rule. The commenters recommended that construction activities include intense levels of clearing, grading and excavating associated with projects which meet the following criteria: clearing, grading and excavation activities with a duration in excess of six months; and construction of single or multiple story office or industrial buildings with a grade slab in excess of 15,000 square feet; or road building (does not include construction of wooden roads for access to remote locations); or construction of a residential home that is part of a larger common plan of development or sale. Under the industrial proposal, such ``high intensity'' small construction would be subject to Federal storm water regulations. The default, ``low intensity'' construction activity would not. Today's proposal does not incorporate these suggestions because the Agency believes that regulation of storm water to protect water quality relates more to the disturbance of land surfaces (i.e., on a two dimensional, roughly horizontal plane) rather than to the activity or reason for the land disturbance. EPA proposes to regulate storm water discharges associated with construction activity from smaller sites, not the construction activity itself. EPA would consider this option in the final rule, however, if public comments demonstrate that a ``low intensity'' exclusion would relate to the intensity of the surface disturbance. The second waiver opportunity EPA proposes today does relate to the intensity of surface disturbance, and necessarily accounts for regional variation. The Agency, therefore, invites comment on how to define applicability provision to exclude ``low intensity'' surface disturbances associated with construction activity and still provide a simple, workable regulation that accounts for regional variability. EPA believes the approach proposed in this proposal would provide EPA and the States with a more manageable program than the other alternatives discussed. The proposed approach should offer flexibility to State and local governments in managing their storm water programs with little or no interruption in the consistency of current environmental management and would assure appropriate tracking and enforcement mechanisms. EPA requests comment on the appropriateness of the scope and requirements of this part of today's proposed storm water program. 3. Other Sources In the National Water Quality Inventory, 1994 Report to Congress submitted by EPA pursuant to section 402(p)(5), EPA examined the remaining unregulated point sources of storm water for the potential to adversely affect water quality. Due to very limited national data on which to estimate pollutant loadings on the basis of discharge categories, the discussion of the extent of unregulated storm water discharges is limited to an analysis of the number and geographic distribution [[Page 1588]] of the unregulated storm water discharges. Therefore, EPA is not proposing to designate any additional unregulated point sources of storm water on a nationwide, categorical basis. Instead, EPA is designating a category of sources to be regulated based on case-by-case post-promulgation designations by the NPDES permitting authority. EPA did, however, evaluate a variety of categories of discharges for potential designation in the report to Congress. EPA's efforts to identify sources and categories of unregulated storm water discharges for potential designation for regulation under today's proposal started with an examination of approximately 7.7 million commercial, retail, industrial, and institutional facilities identified as ``unregulated.'' In general, the distribution of these facilities follows the distribution of population, with a large percentage of facilities concentrated within urbanized areas (see page 4-35 of Storm Water Discharges Potentially Addressed by Phase II of the NPDES Storm Water Program, EPA 833-K-94-002). This examination resulted in identification of two general classes of facilities with the potential for discharging pollutants to waters of the United States through storm water point sources. The first group (Group A) included sources that are very similar, or identical, to regulated ``storm water discharges associated with industrial activity'' but that were not included in the existing storm water regulations because EPA used SIC codes in defining the universe of regulated industrial activities. By relying on SIC codes, which were not classified according to environmental impacts, some types of storm water discharges that might otherwise be considered ``industrial'' were not included in the existing NPDES storm water program. The second general class of facilities (Group B) was identified on the basis of potential activities and pollutants that could contribute to storm water contamination. EPA estimates that Group A has approximately 100,000 facilities. Discharges from facilities in this group, which may be of high priority due to their similarity to regulated storm water discharges from industrial facilities, include, for example, auxiliary facilities or secondary activities (e.g., maintenance of construction equipment and vehicles, local trucking for an unregulated facility, such as a grocery store) and facilities intentionally omitted from existing storm water regulations (e.g., treatment works with a design flow of less than 1 million gallons per day, and landfills that have not received industrial waste). Group B consists of nearly one million facilities. EPA organized Group B sources into 18 sectors for the purposes of the report to Congress. The automobile service sector (e.g., gas/service stations, general automobile repair, new and used car dealerships, car and truck rental) makes up more than one-third of the total number of facilities identified in all 18 sectors. EPA conducted a geographical analysis of the industrial and commercial facilities in Groups A and B. The geographical analysis shows that the majority are located in urbanized areas (see Section 4.2.2, Geographic Extent of Facilities, in the Report to Congress). In general, about 61 percent of Group A facilities and 56 percent of Group B facilities are located in urbanized areas. The analysis also showed that nearly twice as many industrial facilities are found in all urbanized areas as are found in large and medium municipalities alone. Notable exceptions to this generalization included lawn/garden establishments, small unregulated animal feedlots, wholesale livestock, farm and garden machinery repair, bulk petroleum wholesale, farm supplies, lumber and building materials, agricultural chemical dealers, and petroleum pipelines, which can frequently be located in smaller municipalities or rural areas. In identifying potential categories of sources for designation in today's notice, EPA considered designation of discharges from Group A and Group B facilities. Based on input from the Storm Water Phase II FACA Subcommittee, EPA applied three criteria to each potential category in both groups to determine the need for designation: (1) The likelihood for exposure of pollutant sources included in that category, (2) whether such sources were adequately addressed by other environmental programs, and (3) whether sufficient data were available at this time on which to make a determination of adverse water quality impacts for the category of sources. As discussed previously, EPA searched for applicable nationwide data on the water quality impacts of such categories of facilities. By application of the first criterion, the likelihood for exposure, EPA considered the nature of potential pollutant sources in exposed portions of such sites. As precipitation contacts industrial materials or activities, the resultant runoff is likely to be contaminated with pollutants. As the size of these exposed areas increases, EPA expects a proportional increase in the pollutant loadings leaving the site. If EPA concluded that a category of sources has a high potential for exposure of raw materials, intermediate products, final products, waste materials, byproducts, industrial machinery, or industrial activity to rainfall, the Agency rated that category of sources as having ``high'' potential for adverse water quality impact. EPA's application of the first criterion showed that a number of Group A and B sources have a high likelihood of exposure of pollutants. Through application of the second criterion, EPA assessed the likelihood that pollutant sources are regulated in a comprehensive fashion under other environmental protection programs, such as programs under the Resource Conservation and Recovery Act (RCRA) or the Occupational Health and Safety Act (OSHA). If EPA concluded that the category of sources was sufficiently addressed under another program, the Agency rated that source category as having ``low'' potential for adverse water quality impact. Application of the second criterion showed that some categories were likely to be adequately addressed by other programs. After application of the third criterion, availability of nationwide data on the various storm water discharge categories, EPA concluded that available data would not support any such nationwide designations. While such data could exist on a regional or local basis, EPA believes that permitting authorities should have flexibility to regulate only those categories of sources contributing to localized water quality impairments. Therefore, today's proposal does not propose to designate any additional industrial or commercial category of sources. Rather, today's proposal would encourage control of storm water discharges from Groups A and B through self-initiated, voluntary BMPs, unless the discharge (or category of discharges) is individually or locally designated as described in the following section. The necessary data to support designation could be available on a local, regional, or watershed basis and would allow the NPDES permitting authority to designate a category of sources or individual sources on a case-by-case basis. If sufficient nationwide data become available in the future, EPA could at that time designate additional categories of industrial or commercial sources on a national basis. EPA requests comment on the three-pronged analysis used to assess the need to designate additional industrial or commercial sources and invites suggestions regarding watershed-based designation. EPA also requests information regarding any available [[Page 1589]] national or local data on the potential water quality impacts of other currently unregulated point sources of storm water. Finally, storm water discharges from facilities exempted by the Intermodal Surface Transportation and Efficiency Act of 1991 (discharges from industrial activities other than power plants, airports, and uncontrolled sanitary landfills that are owned or operated by municipalities of less than 100,000 people) were also identified as potential sources for designation under today's proposal. These facilities discharge storm water in the same manner (and are expected to use identical processes and materials) as the industrial facilities regulated under the existing regulations. As such, these facilities would pose similar water quality threats. The extended moratorium for these facilities was necessary to allow municipalities additional time to comply with NPDES requirements. EPA proposes to maintain August 7, 2001, as the NPDES permit application deadline for such municipally owned or operated facilities discharging industrial storm water. General permits are available in States where EPA issues permits and should already be available for such sources in most NPDES- authorized States. Based on advice and recommendations of small entity representatives, EPA also invites comment on whether permit authorization for these discharges could be combined with permit authorization for other discharges from the municipal separate storm sewer system. Municipal representatives recommended to EPA that permit requirements for municipally-owned or operated industrial facilities be included in municipal storm water permits (this recommendation could be extended to cover municipally-owned construction activities, as well). As such, municipalities would be covered by a single permit, rather than by two or more separate permits. The Agency agrees with the recommendation and is considering options to implement it. One option would be to include relevant industrial storm water controls in the municipal storm water permits for the types of industrial facilities typically owned or operated by municipalities. Another option would be to cross-reference industrial storm water permit requirements in municipal storm water permits. A third option would be to design an additional minimum control measure for municipal storm water programs that would address municipally-owned or operated industrial facilities. The Agency seeks input on these options and suggestions as to any additional options. The Agency also seeks comment on any implementation issues associated with this recommended approach. 4. Residual Designation Authority The NPDES permitting authority's existing designation authority, as well as the petition provisions would be retained. The proposed rule contains two provisions related to designation authority at Secs. 122.26(a)(9)(i)(C) and (D). Subsection (C) would add designation authority where storm water controls are needed for the discharge based upon wasteload allocations that are part of TMDLs that address the pollutants of concern or upon a comprehensive watershed plan implemented for the waterbody that includes the equivalents of TMDLs and addresses the pollutants of concern. EPA intends that the NPDES permitting authority would have discretion in the matter of designations based on existing TMDLs under subsection (C) and would invite comment on the implementation of existing TMDLs as the basis for designation under today's proposed storm water program. Subsection (D) would carry forward residual designation authority under Sec. 122.26(g) of the existing regulations. Under today's proposal, EPA and authorized States would continue to exercise the authority to designate remaining unregulated discharges composed entirely of storm water for regulation on a case-by-case basis (see proposed Secs. 122.26(b)(15) and 123.35). The standard for designation would be the same as under the existing NPDES regulations for storm water. Individual sources would be subject to regulation if EPA or the State, as the case may be, determines that the storm water discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. This standard is based on the text of section 402(p). In today's proposed rule, EPA believes, as Congress did in drafting section 402(p)(2)(E), that individual instances of storm water discharge might warrant special regulatory attention, but do not fall neatly into a discrete, predetermined category. EPA does envision, however, that preservation of such regulatory authority would be necessary to subsequently address a source (or sources) of storm water discharges of concern on a localized or regional basis. As States and EPA implement TMDLs, for example, permitting authorities might need to designate some of the point sources of storm water not subject to regulation on categorical basis nationwide in order to assure progress toward compliance with water quality standards in the watershed. EPA intends that the TMDL-based waiver would be available prospectively, applying to future construction sites. This raises an issue of how this waiver provision could be applied to such sites. One of the industrial stakeholders on the Storm Water Phase II FACA Subcommittee questioned the Agency's legal authority to provide for such residual designation authority. The stakeholder argued that the lapse of the October 1, 1994, permitting moratorium under section 402(p)(1) eliminated the significance of the section 402(p)(2) exceptions to the moratorium, including the exception for discharges of storm water determined to be contributing to a violation of a water quality standard or a significant contributor of pollutants under section 402(p)(2)(E). The stakeholder further argued that EPA's authority to designate sources for regulation under section 402(p)(6) is limited to storm water discharges other than those described under section 402(p)(2). Because section 402(p)(2)(E) describes individually designated discharges, the stakeholder concluded that regulations under section 402(p)(6) cannot provide for post-promulgation designation of individual sources. EPA disagrees. First, as explained previously, EPA anticipates that NPDES permitting authorities may yet determine that individual unregulated point sources of storm water discharges may require regulation on a case-by-case basis. This conclusion is consistent with the Congress' recognition of the potential need for such designation under the first phase of storm water regulation as described in section 402(p)(2)(E). Under section 402(p)(2)(E), Congress recognized the need for both EPA and the State to retain authority to regulate unregulated point sources of storm water under the NPDES permit program. Second, to the extent that section 402(p)(6) requires designation of a ``category'' of sources, EPA would designate such (as yet unidentified) sources as a category that should be regulated to protect water quality. Though such sources may exist and discharge today, if neither EPA nor the NPDES permitting authority has designated the source for regulation under section 402(p)(2)(E) to date, then section 402(p)(6) provides EPA with authority to designate such sources. The Agency would make this designation of a category of ``not yet identified'' sources in order to ensure that sources that should be regulated based on local concerns could be [[Page 1590]] regulated even if data does not exist to support nationwide regulation of such sources. EPA does not believe that the language in section 402(p) should be interpreted to preclude States from exercising designation authority under this category after promulgation of a final rule because any such designation (and subsequent regulation of designated sources) would be within the ``scope'' of the NPDES program. EPA also believes that sources regulated pursuant to a State designation would be part of (and regulated under) a Federally approved State NPDES program, and thus subject to enforcement under CWA sections 309 and 505. Under existing NPDES State program regulations, State programs that are ``greater in scope of coverage'' are not part of the Federally-approved program. By contrast, any such State regulation of sources in this ``reserved category'' would be within the scope of the Federal program because today's proposal would recognize the need for such post promulgation designations of unregulated point sources of storm water. Such regulation would be ``more stringent'' than the Federal program rather than ``greater in scope of coverage'' (40 CFR 123.1(h)). In addition, EPA does not interpret the congressional direction in section 402(p)(6) to preclude regulation of point sources of storm water that should be regulated to protect water quality. Under CWA section 510, Congress expressly recognized and preserved the authority of States to adopt and enforce more stringent regulation of point sources, as well as any requirement respecting the control or abatement of pollution. Section 510 applies, ``except as expressly provided'' in the CWA. The CWA does expressly provide affirmative limitations on the regulation of certain pollutant sources through the point source control program in section 502(14), which excludes agricultural storm water and return flows from irrigated agriculture from the definition of point source, and section 402(l), which again limits applicability of the section 402 permit program for return flows from irrigated agriculture, as well as for storm water runoff from certain oil, gas, and mining operations. EPA does not interpret section 402(p)(6) as an express provision limiting the authority to designate point sources of storm water for regulation on a case-by-case basis after the promulgation of final regulations. Any source of storm water is encouraged to assess its potential for storm water contamination and take preventive measures against contamination. Such proactive actions could result in the avoidance of future requirements. Finally, EPA evaluated the proposal under which owners or operators of regulated small, medium, and large municipal separate storm sewer systems would be responsible for controlling discharges from industrial and other facilities into their systems in lieu of requiring NPDES permit coverage for the individual facilities. EPA does not propose this framework due to concerns with administrative and technical burden on the municipalities, as well as concerns about such an intergovernmental mandate. EPA does, however, request comments on this approach. J. Conditional Exemption for ``No Exposure'' of Industrial Activities and Materials to Storm Water 1. Background As noted previously, the 9th Circuit remanded to EPA for further rulemaking a portion of the definition of ``storm water discharge associated with industrial activity'' that exempted the category of industrial activity identified as ``light industry'' (NRDC v. EPA, 966 F.2d 1292, 1305 [9th Cir. 1992]). In addition to the rulemaking conducted under section 402(p)(6) on August 7, 1995, today's proposal also responds to that remand. In the 1990 storm water regulations, EPA exempted facilities in the category from the requirement for an NPDES permit if the industrial materials or activities were not ``exposed'' to storm water (see 40 CFR 122.26(b)(14) [introductory text]). The Agency has reasoned that most of the activity at these types of facilities takes place indoors and that emissions from stacks, use of unhoused manufacturing equipment, outside material storage or disposal, and generation of large amounts of dust or particles would be atypical (55 FR 48008, November 16, 1990). The Ninth Circuit determined that the exemption was arbitrary and capricious for two reasons (966 F.2d at 1305). First, the court found that EPA had not established a record to support its assumption that light industry that was not exposed to storm water was not ``associated with industrial activity,'' particularly when other types of industrial activity not exposed to storm water remained ``associated with industrial activity.'' The court specifically found that ``[t]o exempt these industries from the normal permitting process based on an unsubstantiated assumption about this group of facilities is arbitrary and capricious'' (966 F.2d at 1305). Second, the court concluded that the exemption impermissibly ``altered the statutory scheme'' for permitting because the exemption relied on the unverified judgement of the light industrial facility operator to determine non-applicability of the permit application requirements. In other words, the court was critical that the operator would determine for itself that there was no exposure and then simply not apply for a permit without any further action. Without a basis for ensuring the effective operation of the permitting scheme--either that facilities would self-report actual exposure or that EPA would be required to inspect and monitor such facilities--the court vacated and remanded the rule to EPA for further rulemaking (966 F.2d at 1305). Under today's proposal, the Agency responds to both of the bases for the court's remand. First, the exemption from permitting based on ``no exposure'' applies to all industrial categories listed in the existing storm water regulations, regardless of the type of industry. The court's opinion rejected EPA's distinction between light industry and other industry, but it did not preclude an interpretation that treats ``non-exposed'' industrial facilities in the same fashion. Presuming that an industrial facility adequately precludes exposure of industrial materials and activities to storm water, EPA proposes to treat discharges from ``non-exposed'' industrial facilities in a manner similar to the way Congress intended for discharges from administrative buildings and parking lots; specifically, permits would not be required on a categorical basis. To assure that discharges from industrial facilities really are similar to discharges from administrative buildings and parking lots, and to respond to the second basis for the court's remand, EPA proposes that the permitting exemption be conditional. The person responsible for a point source discharge from a ``no exposure'' industrial source must meet the conditions of the exemption and provide a certification pursuant to 40 CFR 122.22 for tracking and accountability purposes. EPA believes today's proposal, therefore, is fully consistent with the direction provided by the court. A major objective of the FACA Committee at the outset (August 1995), was to streamline and reinvent certain troublesome or problematic aspects of the existing storm water permitting program. One area identified was the mandatory applicability of the permitting program to all industrial facilities, even those ``light'' industrial activities that are of very low risk or of [[Page 1591]] no risk to storm water contamination. Such dischargers could have no industrial sources of storm water contamination on the industrial plant site, yet they are still required to acquire an NPDES storm water permit and meet all permitting requirements. Examples of such facilities would be a soap manufacturing plant (SIC Code 28) or hazardous waste treatment and disposal facility, where all industrial activities, even loading docks, are inside a building or under a roof. Committee members advised EPA that the existing storm water program needed to be revised to allow such facilities to seek an exemption from the NPDES storm water permitting requirements. Committee members agreed that such an exemption should also provide a strong incentive for other industrial facilities that might conduct some industrial activities outdoors exposed to rainfall and runoff to move the activities under cover or into buildings to prevent contamination of rainfall and storm water runoff. The committee believed that such a no-exposure permit exemption provision could be a valuable incentive for storm water pollution prevention. Over approximately 2 years, the Phase I Improvement Work Group of the FACA Committee developed and recommended to EPA the concept of a no-exposure incentive provision, which EPA is proposing by making a change to the existing storm water rules and adding a new storm water rule provision, including a no-exposure certification process as discussed below. EPA relied upon the no-exposure concept developed by the FACA Committee in developing today's proposal regarding ``no exposure.'' EPA proposes to incorporate the recommendations of the committee by deleting the sentence regarding ``no exposure'' for the facilities in Sec. 122.26(b)(14)(xi) and adding a new section--Sec. 122.26(g) Conditional Exemption for No Exposure of Industrial Activities to Storm Water. In accordance with the committee's recommendations, the proposed no-exposure provision refers to all classes of industrial and other facilities discharging storm water that would be defined under existing Sec. 122.26(b)(14), except construction defined under existing Sec. 122.26(b)(14)(x) and proposed Sec. 122.26(b)(15)(i) and sources individually designated under Secs. 122.26(a)(1)(v), 122.26(a)(9)(i)(B),(C), & (D) and 122.26(g)(3). Thus, proposed Sec. 122.26(g) would make all classes of industrial facilities eligible for exemption from the identification as ``associated with industrial activity'' under the existing regulations. Today's proposal represents a significant expansion in the scope of the no-exposure provision originally promulgated in the 1990 rule for only light industry. The intent of this proposal is to provide industrial facilities that are entirely indoors a simplified method of complying with the CWA. This could include facilities that are located within a larger office building, or at which the only items permanently exposed to precipitation are roofs, parking lots, vegetated areas, and other non-industrial areas or activities. Although the FACA Committee agreed in principle to the basic concept of this exemption, committee members could not resolve two significant issues related to the actual implementation of the concept. The first issue relates to how to account for storm water runoff from parking lots, roof tops, lawns, and other non-industrial areas of an industrial facility. These types of storm water discharges, which may contain pollutants or which may result in excess storm water flows, are not directly regulated under the existing storm water permitting program because they are not ``storm water discharges associated with industrial activity.'' The second issue involves an industrial facility that achieves no exposure by constructing large amounts of impervious surfaces, such as roofs (where previously there were pervious or porous surfaces into which storm water could infiltrate), which results in a significant increase in storm water volume flowing off the industrial facility and thus causes adverse receiving water impacts simply due to the increased quantity of storm water flow. Although discussed extensively, the FACA Committee was not able to reach a consensus recommendation on how to fully address these two remaining issues. From the perspective of the environmental groups on the committee, excessive storm water flows from an industrial site and pollutants from non-industrial areas of the site are potentially a significant cause of receiving water impairment and, as such, should not be allowed to occur as a result of achieving no exposure and gaining an exemption from an NPDES storm water permit. Environmental groups believe that storm water discharges from impervious areas at an industrial facility are generally more frequent, and many of them larger, than discharges from the preexisting natural surfaces. These discharges will contain pollutants typical of commercial areas, streets, and roads and are an equal threat to direct human uses of the water and can cause equal damage to aquatic life and its habitat. The environmental groups believe that these storm water discharges should be permitted in the same way that residential and commercial storm water discharges are permitted and that, otherwise, these discharges--their volume alone often destructive of aquatic life and habitat, and containing conventional pollutants as well--would escape the control required under the CWA. The industry representatives support streamlining the existing storm water permitting program by exempting no-exposure facilities. They believe that creating this exemption, however, does not create in EPA the authority to regulate other activities not subject to the existing storm water program. Industry representatives point out that since 1990, the NPDES storm water permitting program has excluded administrative buildings, parking lots, and other non-industrial areas from permitting or other regulatory requirements. The industry representatives also reserved the right to address the legal authority provided by Congress to EPA to regulate the amount of storm water discharged from these areas. Industry representatives believe that if Congress or EPA addresses the issue of flow, it should be addressed on a broader scale than merely through the no-exposure exemption. Municipal representatives believe that EPA has no authority under any existing legal framework to regulate flow. Developing federal parameters for the control of flow would result in federal intrusion into land use planning, an authority that they claim is solely within the purview of State government and their political subdivisions. Local governments are aware of the impact that flows have on receiving waters and, as has been well documented, take the appropriate steps to ameliorate negative results within the context of locally developed and agreed upon long-term land use plans. Under no circumstances will local governments agree to share or cede this authority with or to federal agencies or departments. Given the lack of consensus by the FACA Committee on these two remaining key issues, EPA is soliciting public comment on potential ways to address these issues, if possible, in the context of the proposed no-exposure exemption. In an effort to address the second issue the FACA Committee recommended that the no-exposure 5-year certification form (discussed below) should be modified to add an additional question that asks the facility operator to provide information [[Page 1592]] indicating if large amounts of impervious surfaces were created to qualify for the no-exposure exemption. To respond to the question, a series of four boxes would be checked by the facility operator indicating approximately how much impervious area was created, if any, to achieve no exposure. These boxes would be (1) none, (2) less than 1 acre, (3) 1 to 5 acres, and (4) more than 5 acres. This question would provide additional information that would help the NPDES permitting authority determine whether or not an NPDES storm water permit should be required for the facility. In order to be covered under the no-exposure provision, EPA proposes that an owner or operator of an otherwise regulated facility would need to submit to the NPDES permitting authority the no exposure form certifying that the facility meets the no-exposure requirements (see Appendix 4 for the Draft No Exposure Certification Form). This requirement would apply across all categories of industrial activity covered by the existing program, except discharges associated with construction activity, and would include those facilities currently in Sec. 122.26(b)(14)(xi) (''light industry'') that are not permitted based upon a claim of ``no exposure.'' The category (xi) ``light'' industrial facilities that claim to have no exposure of materials to storm water are not required under the existing regulations to submit any type of form to the permitting authority, but would need to submit a certification under today's proposal. The facility would need to allow the NPDES permitting authority or operator of a municipal separate storm sewer system (where there is a storm water discharge to the municipal system) to inspect the facility and to make such inspection reports publicly available, upon request. In addition, based on committee recommendations, EPA proposes that the certification would require only minimal amounts of information from the facility claiming the no-exposure exemption. The NPDES permitting authority would maintain a simple registration list that should impose minimal administrative burden, but that would allow for tracking of industrial facilities claiming the exemption. EPA envisions the NPDES storm water program to be implemented primarily through general permits and the no exposure certification to be submitted at the ``beginning'' of each permit term. However, EPA invites comment on situations that may affect the timing of submission of the no exposure certification, for example, in cases where a facility's process water and storm water are covered under an individual permit. 2. Definition of ``No Exposure'' For purposes of this section, ``no exposure'' would mean that all industrial materials or activities are protected by storm resistant sheltering so that they are not exposed to rain, snow, snowmelt, or runoff. Industrial materials or activities would refer to those activities or materials described under Sec. 122.26(b)(14) (e.g., material handling equipment, industrial machinery, raw materials, intermediate products, byproducts, or industrial waste products, however packaged). Barrels, drums, dumpsters, and other packaging containing industrial wastes are inherently prone to leak and therefore could be a source of exposure, thereby precluding the facility from qualifying for the exemption. The FACA Committee held lengthy discussions on the definition of no exposure pertaining to barrels, drums, dumpsters, and other packaging containers. The committee could not agree on whether barrels, drums, dumpsters, and other packaging containers that are outdoors should trigger the disqualification of an industrial facility from the no- exposure exemption. One perspective expressed was that any such containers that are stored outdoors should constitute exposure and the need for a permit, whether or not they are leaking. The opposing perspective was that containers should be allowed to be stored outdoors and not be considered exposure as long as they were not actually leaking. The committee also discussed the concept of ``potential to leak'' as a trigger for exposure, but could not agree on this approach. Therefore, EPA is soliciting public comment on this issue and the approach proposed in today's rule. The term ``storm resistant shelter'' is intended to include completely roofed and walled buildings or structures, as well as structures with only a top cover but no side coverings, provided material under the structure is not otherwise subject to any run-on and subsequent runoff of storm water. For purposes of this provision, emissions from roof stacks/vents that are regulated and in compliance under other environmental protection programs and that do not cause storm water contamination would be considered not exposed. EPA requests comment on the scope of roof stacks/vents that would be covered by this provision. EPA welcomes, in particular, any suggestions as to ways in which this provision might be narrowed so as to focus on significant stack emissions that could result in identifiable levels of storm water contamination. Visible ``track out'' (i.e., pollutants carried on the tires of vehicles) or windblown raw materials would be deemed ``exposed.'' Leaking pipes containing contaminants exposed to storm water would be deemed ``exposed,'' as would past sources of storm water contamination that remain onsite. General refuse and trash, not of an industrial nature, would not be considered exposed industrial materials. While the intent of this provision is to promote permanent no exposure, EPA understands that certain machinery, such as trucks, could pass between buildings and, during passage, would be exposed to rain and snow. Adequately maintained mobile equipment (e.g., trucks, automobiles, trailers, or other such general purpose vehicles found at the industrial site that are not industrial machinery or material handling equipment and that are not leaking contaminants or are not otherwise a source of industrial pollutants) could be exposed to precipitation or runoff. Such activities alone would not prevent a facility from being able to certify no exposure under this provision. Similarly, trucks or other vehicles located at vehicle maintenance facilities awaiting maintenance, as defined at 40 CFR 122.26(b)(14)(viii), that are not leaking contaminants or are not otherwise a source of industrial pollutants, would not be considered exposed. In addition, EPA recognizes that other instances could occur where permanent no exposure of industrial activities or materials is not possible and, therefore, is proposing that under such conditions, materials and activities be covered with temporary covers, such as tarps, between periods of permanent enclosure. This proposal would not specify every such situation, instead EPA intends that permitting authorities would address this issue on a case-by-case basis. Permitting authorities could determine the circumstances under which temporary structures would or would not meet the requirements of this section. Until permitting authorities determined otherwise, temporary coverage of industrial materials or activities would be allowable under this section during facility renovation or construction, provided the temporary cover achieved the intent of this section. Moreover, exposure that results from a leak in protective covering would only be considered exposure if not corrected prior to the next storm water discharge event. While the intent of this proposal would be to reduce the regulatory [[Page 1593]] burdens on industrial facilities and government agencies, the FACA Committee suggested that the NPDES permitting authority should consider a compliance assessment program to ensure that facilities that have availed themselves of this no-exposure option meet the applicable requirements. Inspections would be conducted at the discretion of the NPDES permitting authority and would likely be coordinated with other facility inspections. EPA expects, however, that the permitting authority would conduct inspections when it became aware of potential water quality impacts possibly caused by the facility's storm water discharges or when requested to do so by affected members of the public. The intent of this provision would be that the 5-year no- exposure certification be fully available to, and enforceable by, appropriate federal and State authorities under the CWA. Private citizens could enforce against facilities for discharges of storm water that are inconsistent with a no-exposure certification if storm water discharges from such facilities are not otherwise permitted. The FACA Committee recommended that the certifying party not allow any actions taken to qualify for this provision to result in a net environmental detriment. The phrase ``no net environmental detriment,'' however, seemed too imprecise a phrase to use within this context. Therefore, EPA is proposing to implement this recommendation by requiring that actions taken to qualify for this provision shall not interfere with the attainment or maintenance of water quality standards, including designated uses. Permitting authorities would be able, where necessary, to make a determination by evaluating the activities changed at the industrial site to achieve no exposure and assess whether these changes adversely impact, or have the potential to impact, water quality standards, including designated uses. EPA anticipates that most efforts to achieve no exposure would employ simple good housekeeping and contaminant cleanup activities. Other efforts could involve moving materials and industrial activities indoors into existing buildings or structures. In very limited cases, industrial operators could make major changes at a site to achieve no exposure. These efforts could include constructing a new building or cover to eliminate exposure or constructing structures to prevent run-on and storm water contact with industrial materials or activities. Where major changes were undertaken to achieve no exposure that increase the impervious area of the site, the facility operator would need to provide information on this in the certification form discussed above. Using this information, and other available data and information, permitting authorities should be able to assess whether any major change has resulted in increased pollutant concentrations or loadings, toxicity of the storm water runoff, or a change in natural hydrological patterns that would interfere with the attainment and maintenance of water quality standards, including designated uses or appropriate narrative, chemical, biological, or habitat criteria where such State water quality standards exist. In these instances, the facility operator and their NPDES permitting authority should take appropriate actions to ensure that attainment or maintenance of water quality standards can be achieved. The NPDES permitting authority could determine the need for the facility to obtain coverage under an individual permit or a general permit to ensure that appropriate actions are taken to address water quality impacts. Another issue that the FACA Committee discussed but was unable to reach consensus on was whether or not the facility operator should bear the burden of determining whether the activities undertaken to achieve no exposure impact, or have the potential to impact, water quality standards, or whether the NPDES permitting authority should be responsible for making that determination. Some members of the FACA Committee indicated that facility operators are not sufficiently trained to conduct water quality impact assessments, nor privy to the necessary information, and, therefore, would not be able to make these determinations. Similarly, these members highlighted that under the existing NPDES permitting program, the NPDES permitting authority appears to have this responsibility (see 40 CFR 122.44(d)). Other committee members explained that only the facility operator would know exactly what changes were made at the industrial site to achieve no exposure and, therefore, should make the determination. Other committee members were concerned that these determinations would place an extensive burden on permitting authorities. In today's proposed rule, the NPDES permitting authority would have the primary responsibility for determining potential or actual water quality impacts; however, this determination would be based upon specific information that the operator would be required to provide. Given the differing opinions expressed by committee members regarding this provision, EPA is also inviting public comment on this aspect of the no exposure incentive. EPA envisions that general permits would be used to implement the program and that the owner or operator would submit a written certification to the permitting authority once every 5 years at the ``beginning'' of the permit term or prior to commencing discharges during a permit term. Upon request, the owner or operator would also need to submit a copy of the certification to the municipality in which the facility is located. EPA invites comment on situations that may affect the timing of submission of the certification. For example, some States are transitioning toward ``specific'' general permits (industry or watershed-based), and to the extent possible, to individual permits--making it likely that more than one general permit may be applicable to a given facility and raising an issue as to when to submit a ``no exposure'' certification. Once a facility operator has established that the facility meets the definition of no exposure, it would be imperative that the operator of the facility maintains the no-exposure condition. Failure to do so would result in the unauthorized discharge of pollutants to waters of the United States, which could result in penalties under the CWA. Where a facility operator determines that exposure would occur in the future due to some anticipated change at the facility, the operator would need to submit an application and acquire storm water permit coverage prior to such discharge to avoid such penalties. 3. Options Considered In the course of the ``no-exposure dialogue,'' the FACA Committee considered a number of options for implementing the no-exposure provision, including regulating qualifying industrial facilities by (1) an NPDES general permit for no-exposure facilities, (2) a no-exposure permit by rule, (3) a modification of the definition of ``storm water associated with industrial activity'' such that industrial facilities without exposure could instead be covered under the requirements of a new or different storm water program, and (4) a watershed approach to no exposure. The FACA Committee did not fully support any of these options. Some committee members thought that options 1 and 2 provided little incentive to achieve no exposure. However, Option 1 was considered the most enforceable, and Option 2 was [[Page 1594]] considered to have the advantage of enforceability and potential for reduced administrative burden. Under Option 3, the definition of ``discharge associated with industrial activity'' at Sec. 122.26(b)(14) would be modified such that facilities with no exposure could lose their status as ``storm water discharges associated with industrial activity'' under the existing regulations. Rather, these facilities would become storm water dischargers under today's proposed rule and would be required to do whatever the final section 402(p)(6) regulation required. This option would not track, however, the proposed requirements of today's rule because the rule would not impose any requirements on undesignated sources. EPA anticipates that permitted sources would be expected to comply with requirements similar to those for industrial facilities permitted under the existing storm water program. Option 4 had virtually no support. K. Public Involvement/Public Role The Phase II Subcommittee discussed the appropriate role of the public in successful implementation of a municipal storm water program. The Subcommittee generally agreed that a successful municipal storm water program requires an educated and actively involved public. Although efforts to educate and involve the public consume limited staff and financial resources, the benefits are numerous. An educated public increases program compliance from residents and businesses as they realize their individual and collective responsibility for protecting water resources. For instance, an educated and motivated public could reduce pollutant loadings by limiting the use of garden chemicals. Moreover, an educated public is more likely to understand the environmental benefits of a municipal storm water program and, therefore, may be more willing to fund such a program. The program is also more likely to receive public support and participation when the public is actively involved from the program's inception and allowed to participate in the decisionmaking process. In a time of limited staff and financial resources, public volunteers offer diverse backgrounds and expertise that may be used to plan, develop, and implement a program that is tailored to local needs. The public's participation is also useful in the areas of information dissemination/education and reporting of violators, where large numbers of community members can be more effective than a few regulators. The public may undertake several roles in the municipal storm water program to help ensure a beneficial and workable program for all involved. The public is encouraged to contact the NPDES permitting authority or local municipal separate storm sewer operator for information on the municipal storm water program and ways to participate. Such information may also be available from local environmental or other public advocacy groups. EPA is inviting comment regarding the appropriate role of the public in a municipal storm water program, and the best approach that EPA can take in the final regulation to provide appropriate recognition of this role and involvement. The advantages of active public involvement include reduced pollutant loadings, increased program support, and vigilant protection of waterbodies. Some examples of such involvement follow. First of all, the public may be subject to local storm water program requirements, guidelines, and financial costs. For example, the public could be subject to a local ordinance that prohibits dumping used oil down storm sewers. In addition, members of the public might choose to participate as actively involved partners in program planning, development, and implementation (e.g., participate in public meetings and other opportunities for input, perform lawful volunteer monitoring, assist in program coordination with other preexisting and related programs, report suspected violators to the municipal, State, or Tribal authorities), aid in the development and distribution of educational materials, and provide public training activities. In addition, the public could protect waterbodies by taking civil action under section 505 of the CWA against any person who is alleged to be in violation of an effluent standard or permit condition. In such situations, members of the public would be strongly encouraged, however, to resolve any disagreements or concerns directly with the parties involved, either informally or through any available alternative dispute resolution process. The public could also petition the NPDES permitting authority to require an NPDES permit for a discharge composed entirely of storm water that contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. In evaluating such a petition, the NPDES permitting authority would be encouraged to consider the set of designation criteria developed for the evaluation of the small municipal separate storm sewer systems located outside of an urbanized area in places with a population of at least 10,000 and a population density of 1,000 or more. The NPDES permitting authority must make a final determination within 180 days of receiving a petition. Public involvement and participation pose challenges, however. It requires a substantial initial investment of staff and financial resources, which could be very limited. Even with this investment, the public might not be interested in participating. In addition, public participation could slow down the decisionmaking process. Nevertheless, EPA believes the public is vital to the long-term success of the municipal storm water program and strongly encourages public involvement and participation. In response to comments from the Storm Water Phase II FACA Subcommittee, EPA believes it is important for the public to seek administrative remedies before filing civil suit under section 505 of the CWA. EPA also received comments stressing the need to suggest to the public that they have a responsibility to fund the municipal storm water program. While EPA believes it is important that the program be adequately funded, as a federal agency it cannot take a position on the appropriate mechanism or level for such funding. L. Water Quality Issues The CWA combines a technology-based approach with a water quality- based approach to ``restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . . .'' EPA and most States issue NPDES permits to point source discharges of pollutants to meet the technology-based and water quality-based requirements of the act. Technology-based requirements are the minimum level of control and are generally applicable nationwide. When the technology-based controls are not sufficient for the waterbody to support the water quality standards that States or Tribes adopted for their waters, the CWA requires development of more stringent permit limits and control programs to ensure compliance with water quality standards. 1. Water Quality Standards Water quality standards are the cornerstone of a State's or Tribe's water quality management program. States and Tribes adopt water quality standards for waters within their jurisdictions. Water quality standards define a use for a waterbody and describe the specific water quality criteria to achieve that use. Examples of designated uses are recreation and protection of aquatic life. Water quality criteria can include chemical, physical, [[Page 1595]] or biological parameters, expressed as either numeric limits or narrative statements. The water quality standards also contain antidegradation policies to protect existing uses and high quality water. The antidegradation policy ensures that water quality improvements are conserved, maintained, and protected. States and Tribes review their water quality standards every 3 years and, if appropriate, revise them. Water quality standards provide the goals for the waterbody, serve as the regulatory basis of water quality management programs, and are benchmarks by which success is ultimately gauged for a given waterbody or watershed. EPA recognizes that urban runoff is not the only contributor of pollutants and other stressors to urban waterways. Controls on urban runoff, however, represent an opportunity to prevent or capture a significant portion of the pollutants that are causing or contributing to violations of water quality standards, including impairment of designated uses. Storm Water Phase II FACA Subcommittee municipal representatives expressed concern that municipalities not be liable for loadings attributable to other sources. Today's proposal contains provisions that establish a BMP-based program with measurable goals that must meet the standard of MEP and protect water quality. In the first two to three rounds of storm water permits, EPA envisions that this would be the extent of the municipal requirements for a large majority of regulated entities. If additional specific measures to protect water quality were imposed, they would likely be the result of an assessment based on TMDLs, or the equivalent of TMDLs, where the proper allocations would be made to all contributing sources. EPA believes that the municipality's additional requirements, if any, should be guided by its equitable share based on a variety of considerations, such as cost effectiveness, proportionate contribution of pollutants, and ability to reasonably assume wasteload reductions. a. Permitting Policy As a result of today's proposed regulation, NPDES general permits that would be issued to owners or operators of regulated small municipal separate storm sewer systems, as well as storm water discharges associated with other activity, will be the primary mechanism used to implement these requirements. As is the case in the issuance of any NPDES permit, the permitting authority would use its NPDES program requirements, including 40 CFR 122.44 in establishing appropriate permit terms. EPA intends to issue NPDES permits consistent with the August 1, 1996, Interim Permitting Approach guidance (61 FR 43761, November 6, 1996.) This guidance describes the interim permitting approach as follows: In response to recent questions regarding the type of water quality-based effluent limitations that are most appropriate for National Pollutant Discharge Elimination System (NPDES) storm water permits, the Environmental Protection Agency (EPA) is adopting an interim permitting approach for regulating wet weather storm water discharges. Due to the nature of storm water discharges, and the typical lack of information on which to base numeric water quality- based effluent limitations (expressed as concentration and mass), EPA will use an interim permitting approach for NPDES storm water permits. The interim permitting approach uses best management practices (BMPs) in first-round storm water permits, and expanded or better- tailored BMPs in subsequent permits, where necessary, to provide for the attainment of water quality standards. In cases where adequate information exists to develop more specific conditions or limitations to meet water quality standards, these conditions or limitations are to be incorporated into storm water permits, as necessary and appropriate. This interim permitting approach is not intended to affect those storm water permits that already include appropriately derived numeric water quality-based effluent limitations. Since the interim permitting approach only addresses water quality-based effluent limitations, it also does not affect technology-based effluent limitations, such as those based on effluent limitations guidelines or developed using best professional judgment, that are incorporated into storm water permits. Each storm water permit should include a coordinated and cost- effective monitoring program to gather necessary information to determine the extent to which the permit provides for attainment of applicable water quality standards and to determine the appropriate conditions or limitations of subsequent permits. Such a monitoring program may include ambient monitoring, receiving water assessment, discharge monitoring (as needed), or a combination of monitoring procedures designed to gather necessary information. This interim permitting approach applies only to EPA; however, EPA also encourages authorized States and Tribes to adopt similar policies for storm water permits. This interim permitting approach provides time, where necessary, to more fully assess the range of issues and possible options for the control of storm water discharges for the protection of water quality. This interim permitting approach may be modified as a result of the ongoing Urban Wet Weather Flows Federal Advisory Committee policy dialogue on this subject. EPA would encourage authorized States and Tribes to adopt policies similar to the Interim Permitting Approach when developing its storm water program. For a discussion of appropriate monitoring activities, see Section II.L.4. below. 2. Total Maximum Daily Loads A TMDL analysis includes the determination of the relative contributions of pollutants from point, nonpoint, and natural background sources, including a margin of safety of pollutants that can be discharged to a water quality-limited waterbody to meet water quality standards. More specifically, an allowable TMDL is defined as the sum of the individual wasteload allocations for existing and future point sources (including storm water) and load allocations for existing and future nonpoint sources (including diffuse runoff and agricultural storm water) and natural background materials with a margin of safety incorporated to account for uncertainty in the analysis. TMDLs are required in the CWA section 303(d)(1) for waters that will not achieve water quality standards after implementation of technology-based controls. These provisions have been codified in 40 CFR 130.7. The Part 130 regulations were designed to implement CWA sections 106, 205(g), 205(j), 208, 303, and 305, which address ambient water quality monitoring and planning for implementation, including funding and periodic reporting of ambient water quality for the development of a national inventory. Section 130.5 describes a continuing water quality planning process designed to implement CWA section 303(e). Of particular significance for an alternative State storm water management program described above are the provisions of Sec. 130.6, which describes water quality management planning under sections 208 and 303. The water quality management regulations specify some of the elements of water quality management, including provisions for point and nonpoint source management and control. The nonpoint source management elements include, for example, regulatory and nonregulatory programs, activities, and BMPs for a variety of sources, including urban storm water (see 40 CFR 130.6(c)(4)(iii)(G)). State representatives have suggested that requirements for State storm water management under section 402(p)(6) could derive from, and be developed through, these water quality management provisions of Part 130. EPA is not proposing any amendments to the Part 130 regulations at this time, but is inviting comment on how the existing Part 130 regulations could be used to support the proposed [[Page 1596]] State alternative program described in this proposal. TMDL analyses include estimates of loadings from storm water discharges. Load reductions obtained through the implementation of BMPs required in the NPDES program for storm water should be reflected in the TMDL analysis. Through the TMDL analysis, the relative contribution of storm water discharges within a watershed will be determined. EPA has formed a Federal Advisory Committee to provide advice to EPA on identifying water quality-limited waterbodies, establishing TMDLs for them as appropriate, and developing appropriate watershed protection programs for these impaired waters in accordance with section 303(d). The committee operates under the auspices of the National Advisory Council for Environmental Policy and Technology (NACEPT). 3. Anti-Backsliding In general, the term ``anti-backsliding'' refers to statutory and regulatory provisions at CWA sections 303(d)(4) and 402(o) and 40 CFR 122.44(l) that prohibit the renewal, reissuance, or modification of an existing NPDES permit to contain effluent limits, permit terms, limitations and conditions, or standards that are less stringent than those established in the previous permit. There are, however, exceptions to this prohibition (known as ``antibacksliding exceptions''), which are also presented in sections 303(d)(4), 402(o) and 40 CFR 122.44(l). The issue of backsliding from prior permit limits, standards, or conditions is not expected to initially apply to most storm water dischargers designated under today's proposal because they generally have not been previously authorized by an NPDES permit. However, the backsliding prohibition would apply if a storm water discharge was previously covered under another NPDES permit. Also, the antibacksliding prohibition could apply when an NPDES storm water permit is reissued, renewed, or modified. In most cases, however, EPA does not believe that these provisions would restrict revisions to storm water NPDES permits. 4. Monitoring EPA encourages States to provide a multiyear monitoring strategy in their CWA section 106 grant application to provide the framework for State/EPA agreement on the States' annual work plans. The strategy should include both ambient and program-specific monitoring activities for nonpoint sources, lakes, estuaries, wetlands, and wet weather surveys. States should also include monitoring for NPDES, TMDL, and section 305(b) activities. Finally, the State should describe how these activities were integrated to provide all information necessary to support the State water quality management programs. Specific elements recommended for State monitoring program work plans include identification of indicators to be used to measure progress toward goals and reference conditions for baselines; identification of methods used; identification of water quality problems; sampling and laboratory analytical support with a field manual and quality assurance/quality control (QA/QC) plans; provisions for data storage, management, and sharing; training and support for all involved persons, including volunteer reporting through the section 305(b) process; and annual program evaluation. As part of EPA's efforts to further implementation of urban wet weather programs using a watershed approach, the Agency is working to develop a practical approach to monitoring that would provide meaningful results. Under today's approach, assessment, evaluation, and recordkeeping requirements beyond those required by the NPDES regulations would be left to the discretion of the NPDES permitting authority. The NPDES permitting authority (EPA or the authorized State or Tribe) would determine monitoring requirements in accordance with State or Tribe monitoring plans appropriate to the watershed. For purposes of today's proposal, EPA recommends that, in general, small municipalities not be required to conduct in the first permit term any additional monitoring beyond any they may be already performing. In the second and subsequent permit terms, EPA expects that some limited ambient monitoring might be appropriately required for perhaps half of the regulated small municipal separate storm sewer systems. However, EPA encourages participation in monitoring programs appropriate to watershed protection. The permitting authority may wish to consult the recommendations made in the report prepared by the Intergovernmental Task Force on Monitoring Water Quality (ITFM). For further discussion regarding monitoring activities and the ITFM report, see Section II.H.3.c, Evaluation and Assessment. EPA and the FACA Committee have developed a paper entitled ``Watershed Assessment: A Critical Tool for Stakeholders'' (November 7, 1997) which is intended to supplement a draft watershed-based policy statement entitled ``A Watershed Alternative.'' The policy approach described in the Watershed Alternative would promote a watershed-based assessment as an essential element of watershed-based programs for protecting water quality. The Watershed Assessment paper amplifies this element, describing varying levels of resources and stakeholder needs for developing watershed assessment plans. It also acknowledges the importance of designing each assessment plan to address specific stakeholder interests. The paper states that each plan should include unique assessment goals and objectives, selected baseline, sampling methods, procedures for analysis, record keeping and reporting, and schedules for periodic evaluation. Additionally, the paper sets out the various roles and responsibilities of stakeholders. Also, it contains an expansive bibliography that gives resource managers suggested references to aid them in carrying out each stage of the watershed assessment plan. III. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA prepared an Information Collection Request (ICR) document (ICR No.1820.01), a copy of which may be obtained from Sandy Farmer, OPPE Regulatory Information Division; U.S. Environmental Protection Agency (2137); 401 M Street, S.W.; Washington, D.C. 20460, or by calling (202) 260-2740. Information collection requirements under this proposed rule would include requirements to submit an NPDES permit application or notice for coverage under an NPDES general permit, as well as to comply with applicable recordkeeping and reporting requirements. Under the proposed rule, certain construction sites under 5 acres and small regulated municipal separate storm sewer systems would be required to retain records of data used to complete their NPDES permit applications or NOIs. In addition, small regulated municipal separate storm sewer systems would be required to submit annual reports in the first permit term and reports in years 2 and 4 in subsequent permit terms. Under the proposed rule, the owners or operators of regulated small municipal separate storm sewer systems would be required to submit reports containing information which the permitting authority could use to assess [[Page 1597]] the effectiveness of individual storm water programs. This information could be further used at the time of permit renewal to ensure that appropriate measures would be taken by the owner or operator to revise its storm water program as needed. Information that might be contained in the reports includes monitoring data, and a self-assessment of progress toward pollutant reduction or programmatic goals which were established as permit conditions. Compliance with the applicable information collection requirements imposed under this proposed rule would be mandatory, pursuant to section 402. Exhibit 3 presents annual and average total burden and cost estimates for Phase II respondents (for 3 years under the Paperwork Reduction Act). Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust existing ways for complying with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. Exhibit 3.--Annual and Average Annual Total Burden Estimates for Phase II Respondents [For 3 years under the Paperwork Reduction Act] ---------------------------------------------------------------------------------------------------------------- Estimated Projected burden hours Projected Projected Activity respondents per annual burden annual cost per year respondent (Hrs)\1\ ($)\1\ ---------------------------------------------------------------------------------------------------------------- I. Construction Sources: Notice of Intent................................. 95,889 1.0 95,889 $2,876,670 Development of SWPPPs............................ 95,889 14.6 1,399,979 47,361,303 Individual Application........................... 0 9.1 0 0 Recordkeeping.................................... 95,889 0.1 9,589 211,243 Notice of Termination............................ 95,889 0.5 47,945 765,674 ---------------------------------------------------------- Annual Subtotal.............................. ........... ............ 1,554,361 51,214,890 II. Small Regulated Municipalities: Notice of Intent................................. 4,154 40 166,160 4,341,761 Individual Application........................... 0 88.2 0 0 Co-Applicant Application......................... 0 146 0 0 Retention of Records............................. 4,154 1 4,154 108,544 Annual Report Preparation and Submittal.......... 4,154 21 87,234 2,279,424 ---------------------------------------------------------- Year 1 Subtotal.............................. ........... ............ 257,548 6,729,729 ---------------------------------------------------------- Years 2 and 3 Annual Subtotal (i.e., not including applications)\2\.................. ........... ............ 91,388 2,387,968 ---------------------------------------------------------- Average Annual Burden and Cost\3\............ ........... ............ 146,775 3,835,222 ========================================================== Average Annual Program Total\4\.............. ........... ............ 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 annual report preparation and submittal, i.e., 2 x $2,387,968), which equals $11,505,665. This is divided by 3 (the number of years the ICR is valid) to equal $3,835,222. \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 proposed regulation, there would be no capital and no operations and maintenance costs associated with information collection requirements of the rule. Similarly, there would be no capital/startup or operating and maintenance costs associated with the information collection requirements of the rule. The government burden associated with the proposed extension of the existing storm water program would impact State, Tribal, and Territorial governments (NPDES-authorized governmental entities) that have storm water program authority, as well as the Federal government (i.e., EPA), where it is acting as the NPDES permitting authority in States, Tribes, and Territories that are not authorized to administer the NPDES program. As of May 1997, 42 States and the Virgin Islands had NPDES authority. EPA estimates that 96,962 construction starts and 3,749 small municipal separate storm sewer systems would be regulated within authorized governmental entities. EPA estimates that 18,815 construction starts and 405 small municipal separate storm sewer systems would be regulated in non-authorized States, Tribes, and Territories. The estimated burden that would be imposed upon authorized governmental entities and the Federal government is estimated to be 241,282 hours for authorized States and 38,933 for the Federal government, for a total of 280,215. This estimate is based on the average time that governments would expend to carry out the following activities: review, respond to, and enter a construction NOI into a data base (1 hour); review and enter a Notice of Termination (NOT) into a data base (0.5 hours); process permit applications from owners or operators of regulated small municipal separate storm sewer systems using the NOI (4 hours); issue permits to regulated small municipal separate storm sewer systems (160 hours); and review annual reports submitted by [[Page 1598]] regulated small municipal separate storm sewer systems (30 hours). Today's proposed rule also would include a conditional exemption from the existing storm water permit application requirements for industrial facilities that can certify that their industrial materials or activities have no exposure to storm water. This exemption would be conditioned upon the owner or operator certifying that their facility meets the no exposure requirements. Because the information collection burden associated with this certification, as well as the reduced information collection requirements associated with becoming exempt from the existing storm water permit regulations, are being developed at this time but are most appropriately considered as part of the existing storm water regulations, the incremental change in information collection burden associated with the no exposure requirements has been estimated in a separate section of the economic analysis accompanying today's proposed storm water rule. The proposed no exposure provision would expand the applicability of the ``no exposure'' exemption to more industrial entities than currently contemplated. Under the existing rule, permit application requirements are reserved for storm water discharges associated with light industrial materials and activities identified under Sec. 122.26(b)(14)(xi) if those materials and activities have no exposure to storm water. Today's proposed rule would expand the applicability of the ``no exposure'' exemption to include all industrial activity regulated under Sec. 122.26(b)(14) (except category (x), construction). The proposed no exposure provision would be applied through the use of a written certification process, thus representing a slight burden increase for ``light'' industries with no exposure. There would be both new costs and cost savings. The new costs would relate to the certification requirement and State and Federal implementation costs. The new cost savings would be based on relief from all existing compliance requirements for those industrial facilities that qualify. The net impact of the proposed no exposure provision for regulated industrial facilities would be an annual net savings ranging from $89 million to $2,499 million. The total cost to Federal and State governments would range from $0.6 to $1.1 million annually. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques. Comments are specifically requested on the potential to shorten the recordkeeping period for construction activity less than 5 acres to less than the proposed 3 years. Send comments on the ICR to ``ATTN: Storm Water Proposed Rule ICR Comment Clerk--W-97-15, Water Docket, Mail Code 4101, EPA; 401 M Street, SW, Washington, D.C. 20460'' and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, D.C. 20503, marked ``Attention: Desk Officer for EPA.'' Include the ICR number in any correspondence. Because OMB is required to make a decision concerning the ICR between 30 and 60 days after January 9, 1998, a comment to OMB is best assured of having its full effect if OMB receives it by February 9, 1998. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. IV. Executive Order 12866 Under Executive Order 12866 of September 30, 1993: Regulatory Planning and Review, (58 FR 51735, October 4, 1993) the Agency must determine whether the regulatory action is ``significant'' and therefore subject to OMB review and the requirements of the executive order. The order defines ``significant regulatory action'' as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Pursuant to the terms of Executive Order 12866, it has been determined that this rule is a ``significant regulatory action'' because it could have an annual effect on the economy of $100 million or more. As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record. EPA developed detailed cost estimates for the incremental requirements imposed under today's proposed regulation and the regulatory options considered and applied these estimates to the potentially regulated universe of storm water sources designated under today's proposal. These estimates, including descriptions of the methodology and assumptions used, are described in detail in the Economic Analysis of the Storm Water Phase II Proposed Rule, which is included in the record of this rulemaking. Exhibit 4 summarizes the low-high cost range associated with the basic elements of the proposed rule. Exhibit 4.--Comparison of Annual Compliance Cost Estimates [Millions of 1997 Dollars] -------------------------------------------------------------------------------------------------------------------------------------------------------- No regulation August 7, September 30, February 13, Proposed phase of phase II 1995, final Plan B 1996 draft 1997 draft II rule sources rule proposed rule proposed 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 -------------------------------------------------------------------------------------------------------------------------------------------------------- [[Page 1599]] In interpreting these costs, a number of caveats should be born in mind. The primary component of the municipal costs is the implementation of the six minimum measures. These were estimated from a sample of 21 permit applications for Phase I municipalities. Cost categories from these applications corresponding to the six required Phase II minimum measures were identified and used to calculate, for each measure, the percent of municipalities that would incur costs for that measure, and for those that would, a range of per capita costs. Municipalities that did not show costs for a particular measure on their permit application were assumed to already have programs in place to comply with that measure, and thus incur no additional costs. Also, per capita costs that were more than two standard deviations above or one standard deviation below the mean were dropped because they were not representative of most cities. This evaluation was done separately for the first permit cycle and the second and third permit cycles. In estimating the costs for the second and third permit cycles, cost elements were dropped that would be expected to occur only once, such as development of municipal ordinances, or assessment of appropriate O&M requirements for municipal operations. The first, second, and third permit cycle costs were then combined to get an average annual cost over the first 15 years of the program. The estimated percentages of affected municipalities and the range of per capita costs for each of the six minimum measures are presented in Exhibit 5. Exhibit 5.--Percentage of Municipalities Affected and Range of Per Capita Costs for Six Minimum Measures ------------------------------------------------------------------------ Percent of municipalities Low end of High end of Measure expected to range of range of incur costs per capita per capita (percent) costs costs ------------------------------------------------------------------------ First Permit Cycle: Public Education......... 39 $0.02 $0.34 Public Involvement....... 100 0.19 0.20 Illicit Discharge D&E.... 90 0.04 2.61 Const Site SW Runoff Control.................. 83 0.04 1.59 Post Construction SW Mgt. 4 1.09 1.09 PP/GH of Municipal Ops... 71 0.01 2.00 2nd and 3rd Permit Cycles: Public Education......... 39 0.01 0.34 Public Involvement....... 100 0.12 0.12 Illicit Discharge D&E.... 73 0.04 2.17 Const Site SW Runoff Control.................. 80 0.01 0.83 Post Construction SW Mgt. 4 1.09 1.09 PP/GH of Municipal Ops... 67 0.01 1.08 ------------------------------------------------------------------------ Concerns have been raised that using data from Phase I permit applications to calculate Phase II costs may lead to either an understatement or overstatement of these costs. Since Phase II communities are smaller and less densely populated, they will probably have fewer structures to maintain, systems to map, and connections to inspect for illicit discharges than Phase I municipalities, although whether this is also true on a per capita basis is not clear. They may also be able to coordinate with nearby Phase I programs for some measures, such as public education. However, to the extent that there are significant fixed costs and economies of scale associated with implementation of the measures, the per capita costs for Phase II municipalities may be higher than those for Phase I municipalities. Also, it is not clear whether the costs listed on permit applications represent the entire compliance costs for the Phase I municipalities sampled. EPA requests comment on its methodology of using estimated costs from Phase I permit applications to project per capita costs for Phase II municipalities. EPA especially requests any data that might provide a better indication of actual compliance costs for these types of measures for smaller municipalities. EPA also requests comment on its projection that compliance costs will be lower in the 2nd and 3rd permit cycles. This projection is based on the fact that some program elements, such as development of municipal ordinances and identification of illicit connections, will only have to be done once, in the first permit cycle. However, concern has been raised that there may be counteracting tendencies for subsequent permit cycle costs to be higher, such as population growth and more areas being classified as urbanized areas. Concern has also been expressed that it may not be appropriate to apply the percentages of Phase I municipalities that apparently incurred costs for implementation of each measure to the estimation of Phase II costs. Because Phase II municipalities are smaller, they may be less likely than Phase I municipalities to already have adequate storm water programs in place and thus be more likely to incur additional costs as a result of this rule. As a sensitivity analysis, EPA has estimated the municipal costs under the assumption that 100 percent of covered Phase II municipalities would incur costs for each measure. Under this assumption the municipal costs for the first permit cycle would range from $110 million to $690 million with a mean of $238 million; second and third permit cycles would range from $98 million to $494 million with a mean of $209 million. EPA requests comment on its projections of the percentage of Phase II municipalities expected to incur costs for each measure, and any data that might help refine these estimates for the final rule. To estimate costs to owner/operators of small construction sites, EPA first gathered national data on building permits issued over 15 years. Over the period from 1980 to 1994, there was a 1.3 percent average annual increase in the number of building permits issued. This growth rate was used to project total building starts through the year 2015. To estimate what percentage of these starts would be between 1 and 5 acres, EPA used more detailed data from [[Page 1600]] Prince George's County, Maryland to determine for each category of building permit (residential, commercial, etc.) what percentage was between 1 and 5 acres and applied these percentages to the national totals. Of the projected 645,709 building sites for the year 2000, EPA estimated that 22 percent, or 140,485 would be between 1 and 5 acres, based on the Prince George's County (PGC) data. EPA recognizes that PGC may not be representative of the entire country and requests any data that commenters may have that might be used to develop a better estimate of the number of construction sites between 1 and 5 acres. EPA next estimated the number of sites located in States that already require permits for sites between 1 and 5 acres, and removed these from its cost calculations because sites in these States would not be expected to incur additional costs, beyond those already involved in State permitting. This removed 19 percent of the estimated sites between 1 and 5 acres, leaving a projected 111,357 sites in the year 2000 that would be expected to incur incremental costs as a result of this rule. Finally, EPA estimated the percentage of these sites that are already subject to local sediment and erosion control (SEC) requirements. Based on a survey of 113 localities, EPA estimated that 37 percent of sites between 1 and 5 acres, or 41,202 in the year 2000, would already be subject to local controls and would thus not incur incremental costs to implement SEC measures. EPA estimates that these sites would incur costs for the preparation of Notices of Intent, Notices of Termination, and Storm Water Pollution Prevention Plans only, while the remaining 70,155 sites would incur costs for implementation of SEC controls as well. EPA notes that sites in coastal areas subject to the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) would be required to implement sediment and erosion controls even without the proposed rule. SEC costs for sites in those areas should thus not be considered incremental costs of this rule. However, because EPA is not sure how much overlap exists between coastal zone areas, States that already have permitting programs for small construction sites, and localities that already have SEC requirements, EPA did not remove additional sites from the rule costs specifically because they were located in areas subject to CZARA (note, for example, that most State permitting programs are in such areas). EPA requests comment on its procedure for adjusting the number of sites subject to incremental costs to account for programs and requirements already in place. The proposed rule would allow the NPDES permitting authority to waive applicability of requirements to storm water discharges from small construction sites based on three different criteria. In the economic analysis the Agency has projected that 15 percent of the construction sites that would be covered by today's proposal would be eligible to receive such waivers. Based on an informal survey of individuals familiar with the construction industry, EPA believes the percentage of sites eligible for waivers would probably fall between 5 and 25 percent. If the number of sites eligible for waivers were 25 percent, rather than the 15 percent used in the EA, projected compliance costs for small construction sites would be correspondingly lower. Similarly, if only 5 percent of sites turned out to be eligible for waivers, compliance costs would be correspondingly higher. The construction cost analysis does not include any costs for the preparation and submission of waiver applications, but the agency believes these costs will be negligible. EPA solicits comments and data on its assumptions regarding construction waivers. Because today's proposed rule provides a significant degree of flexibility to the NPDES permitting authority and designated sources proposed for regulation, the actual costs of implementing today's proposed storm water rule depend greatly on how the NPDES permitting authority and regulated sources implement the program. To some extent, this flexibility is reflected in the broad ranges of costs. EPA believes that because of the significant flexibility provided by the proposed rule, the low to middle ranges of costs are most representative of the actual costs likely to be incurred. Estimates of monetized benefits associated with today's proposed regulation were derived using an aggregate, ``top-down'' approach. Under this approach, the underlying data and assumptions were geared to a national scale (e.g., national value of the commercial fishery and nationwide beach visit data). EPA chose this approach because research indicated that, given the variability of local situations and the scarcity of data on both local conditions and on extrapolation methods, a bottom-up approach was not deemed to be feasible at this time. Nevertheless, information from more geographically confined studies provided important data that support such a monetized benefit analysis. In addition, local and regional experiences also verified some of the impacts and benefits that EPA had estimated at a national level. The basic methodology for the top-down approach was as follows. For each of the various categories of financial, recreational, and health benefits, EPA first estimated the total value if all surface waters of the United States were cleaned up to a level that supported their designated uses. Next, using information on the degree and causes of water quality impairment from EPA's 1994 and 1996 Section 305(b) National Water Quality Inventory Report to Congress, EPA estimated the portion of total impairment (and thus total benefits) attributable to storm water runoff. Although it varied by benefit category, generally between 5 and 10 percent of total water quality impairment was found to be attributable to either urban or construction storm water runoff. Finally, EPA determined the share of storm water benefits that should be attributed to the Phase II rule specifically. One consequence of the approach used to estimate monetized benefits is that, unlike the cost analysis, the benefits analysis only provides monetized estimates of the benefits associated with today's proposed regulatory alternative. To account for the fact that any storm water control may not be 100-percent effective, EPA estimated the effectiveness of the storm water BMPs proposed in today's rule and applied these estimates to the total monetized benefits of the proposal. Due to the uncertainty regarding effectiveness of different BMPs, as well as that regarding the appropriate share of storm water benefits to allocate to each of EPA's wet weather programs, EPA developed three scenarios to estimate proposal benefits. In Scenario 1 (high benefits scenario), it was assumed that Phase II BMPs would be 90 percent effective in controlling pollution from storm water runoff, that \5/7\ of health benefits should be allocated to storm water programs (Phases I and II) and \2/7\ should be allocated to EPA's sanitary sewer overflow (SSO) program, and that most municipal storm water benefits should be allocated 50 percent to Phase I and 50 percent to Phase II. The exceptions were benefits for avoided costs of building or replacing water storage capacity, 75 percent of which were to be allocated to Phase II, and benefits for avoided costs of freshwater navigational dredging, 25 percent of which were allocated to Phase II. In Scenario 2 (medium benefits scenario), it was assumed that Phase II BMPs would be 80 percent effective, that all [[Page 1601]] health benefits should be allocated to storm water programs, and again, that most municipal storm water benefits should be allocated evenly between Phases I and II, with the same two exceptions. In Scenario 3 (low benefits scenario), it was assumed that Phase II BMPs would be only 60 percent effective, that all health benefits should be allocated to storm water programs, and that all municipal storm water benefits, including those for avoided costs of building or replacing water storage capacity and freshwater navigational dredging, should be allocated evenly between Phases I and II. In Scenario 1, all water storage replacement and navigational dredging costs were allocated to storm water programs (Phases I and II), while in Scenarios 2 and 3, 96 percent of these benefits were allocated to storm water programs and 4 percent to other wet weather programs. In all three scenarios, 40 percent of storm water construction benefits were allocated to Phase II. The Economic Analysis document accompanying today's action provides a detailed description of the basis rationale for each of these scenarios. Exhibit 6 summarizes annual benefits attributed to the proposed Phase II rule. Exhibit 6.--Summary of Total Annual Monetized Benefits from Implementation of the Proposed Storm Water Rule [Millions of 1997 Dollars] ------------------------------------------------------------------------ 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 monetary estimate of expected benefits for today's storm water proposed rule for municipal and construction benefits. Summing the monetized benefits for each of the scenarios across these categories results in total benefits ranging from approximately $106 million to $574 million (1997 $) annually for the proposed rule. EPA is requesting comment on several aspects of its benefits estimation methodology. The largest single category of estimated benefits is avoided costs of building or replacing water storage capacity (reservoirs) lost to sediment deposition. EPA estimates that an average of 820,000 acre feet of storage capacity is lost to pollution sources each year. EPA further estimates that \1/3\ of this capacity will be replaced by building new reservoirs, at a cost of $420 to $1500 per acre foot, and \2/3\ of this capacity will be restored by dredging, at a cost of roughly $3,500 to $11,000 per acre foot. This yields annual water storage replacement costs of $2 to $6 billion annually. EPA estimates that roughly 8 percent of these costs (or $170 to $510 million) are attributable to storm water runoff. EPA allocated 75 percent of the benefits from avoiding these costs in Scenarios 1 and 2 to Phase II, because it believes that most reservoirs are likely to be outside of densely populated Phase I areas. In Scenario 3, these benefits are allocated evenly between Phases I and II. Concern has been expressed that these benefits estimates may be too high, especially given that the total amount actually spent on navigational dredging attributable to pollution sources annually is only $180 million (to remove 83 million cubic yards), compared to the $2 to $6 billion that EPA estimates would be required to replace the estimated 1.3 billion cubic yards of water storage capacity lost to pollution sources annually. On the other hand, the temporary nature and intermittent frequency of reservoir dredging and the frequent need to deploy and remove heavy equipment and dispose of spoil often in confined areas, may elevate costs on a per cubic yard basis for reservoirs versus navigational dredging. EPA has no data on the actual amount spent on water storage capacity replacement. EPA thus requests comment on its methodology for estimating these avoided costs, on its allocation of these avoided costs between Phases I and II, and any data that would allow it to refine these estimates for the final rule. EPA also requests comment on whether it would be appropriate to discount these benefits, and by how much, given that much of the actual replacement of lost storage capacity may not occur for several decades. EPA further notes that many other categories of benefits may also entail significant lags and requests comment on the appropriateness of discounting benefits to account for these lags generally. EPA is also requesting comment on its methodology for estimating marine recreational and commercial benefits for fishing and swimming. Specifically, the current estimates are based on the degree of estuarine impairment attributable to storm water, although EPA recognizes that a significant share of marine fishing and swimming occurs in open coastal waters rather than estuaries. EPA has assumed that full restoration of these resources would result in a 20 percent increase in their value, based roughly on the degree of estuarine impairment. A concern has been raised that the degree of impairment in open coastal waters may be significantly different than that of estuaries, and the value of full restoration of open coastal resources correspondingly changed. Concern has also been raised that the current estimates do not account for the substitutability of resources, but rather assume that the total amount of current marine fishing and swimming is limited by the availability of unimpaired estuarine and coastal areas. EPA requests comment on its methodology for estimating these benefits, and any data, especially on the degree of impairment of open coastal waters or the fraction of marine fishing and swimming that occurs in such waters, that would allow it to refine these estimates for the final rule. As a sensitivity analysis, EPA also performed an alternative benefits estimate using a different ``bottoms-up'' approach based on its Clean Water Act Effects Model. The modeling approach examined impacts of all wet weather events together: SSOs, CSOs (Combined Sewer Overflows) and storm water Phase I and II. This would provide an upper bound estimates for storm water control. (For this analysis, it was possible to break out CSOs as separate data exists for these events.) Changes in water quality relate to changes in how humans use the resource. This analysis estimated [[Page 1602]] changes to water quality based on assumptions about the level of control EPA would expect from the CWA's wet weather programs. Next, the Agency estimated the changes in human use and enjoyment of the resource. The Agency applied ``willingness-to-pay (WTP)'' values from Mitchell/Carson (1993) contingent valuation survey results, which estimates the amount of money people are willing to pay for water quality improvement. (Mitchell/Carson estimates include values for recreation use as well as nonuse values.) The model examined three different wet-weather programs under three loadings reduction scenarios based on differences in such factors as average annual rainfall in different hydrologic regions and changes in removals. For each of these scenarios EPA further estimated low, medium and high values to account for wide ranges in variability. The following discussion of results is based on medium values in these three scenarios. The results of this analysis show a range of monetized benefit of $1 to $7 billion for all urban wet weather programs. The results of the modeling did not split out storm water impacts from SSO impacts. Applying the percentages used in the top down approach (\5/7\ storm water, \2/7\ SSO), EPA derived an estimate for storm water Phase II. Using the medium results, averaged between the low and the high estimates, benefit estimates for the proposed rule fall within a range of $526 million to $3.56 billion. The wide range of these estimates is due to the very flexible nature of the proposal, which would provide communities with a wide range of options to consider for control of storm water. There are additional benefits to storm water control that cannot be quantified or monetized. The estimate of monetized benefits presented here may thus understate the true value of storm water controls because it may omit additional numerous mechanisms by which society is likely to benefit from reduced storm water pollution, such as improved aesthetic quality of waters, benefits to wildlife and to threatened and endangered species, option existence values, cultural values, and biodiversity benefits. The estimates of freshwater recreational benefits included in the monetized benefits analysis are based on the Mitchell/Carson ``willingness-to-pay'' study. Mitchell/Carson estimates the value people are willing to pay to restore all of the nation's waters to fishable/swimmable quality, and thus presumably already includes associated ``non-use'' values. However, EPA believes there are non-use values that are not captured in the Mitchell/Carson estimates and thus not included in the monetized benefits estimates. These environmental and health benefits are also important. Another benefit that EPA did not specifically monetize is the benefits of flood control to the extent that Phase II storm water controls reduce downstream flooding. In addition, the Agency relied on a geographically-limited data set (Santa Monica Bay, California) to measure the benefits of illness avoided due to storm water controls. A significant category of benefits that the Agency could not specifically monetize is ecological benefits. Urbanization can adversely affect water quality by increasing the amount of sediment, nutrients, metals and other pollutants associated with land disturbance and development. Not only is there a dramatic increase in the volume of water runoff but there may also be a substantial decrease in that water's quality due to stream scour, runoff and dispersion of toxic pollutants, and oversiltation. The higher flow volumes in the tributary streams and channels create a ``domino'' effect of ecological impacts. Erosion of stream banks and incision of the stream floor result in sediment movement and eventually buildup in downstream environments. Sediment covers the stream bed, smothers fish eggs and spawning grounds, interferes with hatching, and can clog the gills and filter systems of fish and aquatic invertebrates. This latter effect can result in retarded growth, systemic disfunction, or asphyxiation. Subsequent loss of aquatic life has a ripple effect up the food chain. High nutrient levels often lead to eutrophication of the aquatic system. This entails the blue/green surface algae bloom, water discoloration, and depressed levels of dissolved oxygen. Heavy metals can have toxic effects on aquatic life. Heavy metals in the water column and sediments have been connected with respiratory problems in fish and often destroy or infect the insect populations which serve as the primary food source for many fish species. High bacteria levels from animal excrement and carcasses, septic runoff or illegal dumping by motor homes and others affect critical estuarine habitats which are the nation's most productive finfish, oyster, clam and shrimp fisheries. EPA requests comment on the extent to which additional consideration of these ecological benefits is needed and appropriate methodologies for quantifying and monetizing them. Exhibit 7 compares the estimated national annual monetized total benefits associated with the proposed storm water regulations with the monetized costs associated with the proposed regulation. Because EPA is uncertain of the exact monetized benefit, the benefits for each scenario have been compared to costs. The net total benefits (social benefits less social costs) for the three benefits scenarios range from positive $34 million in Scenario 1 to negative $531 million in Scenario 3. Exhibit 7.--Comparison of Total Annual Monetized Benefits to Total Annual Costs for the Proposed Phase II Storm Water Rule [Millions of 1997 Dollars] ---------------------------------------------------------------------------------------------------------------- Benefit categories Scenario 1 value Scenario 2 value Scenario 3 value ---------------------------------------------------------------------------------------------------------------- Financial Benefits.................................. $93-$267 $80-$228 $51-$144 Recreational Benefits............................... $81-$304 $72-$271 $54-$203 Health Benefits..................................... $1-$3 $1-$3 $1-$2 $175-$574 $153-$502 $106-$349 Cost categories Value (Low-High) Compliance Costs.................................... .................. $138-$869 .................. Administration Costs................................ .................. $3-$11 .................. ----------------------------------------------------------- Total Monetized Costs........................... .................. $141-$880 .................. =========================================================== Net Monetized Benefits.......................... $34-$(306) $12-$(378) $35-$(531) ---------------------------------------------------------------------------------------------------------------- [[Page 1603]] The proposed storm water rule includes a provision that would allow owners or operators of facilities with existing discharges associated with industrial activity to certify that if significant materials or industrial activities are not exposed to storm water the owners or operators could apply for an exemption from the requirements of the NPDES permitting program. This provision is included in today's proposed storm water rule but would only apply to sources regulated under existing rules. Therefore, EPA has decided not to factor the costs savings associated with this exemption into the costs analysis for today's proposed rule. Rather, the cost savings associated with this exemption is addressed separately in the Economic Analysis. V. Unfunded Mandates Reform Act/Executive Order 12875 Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments and the private sector. Under UMRA section 202, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ``Federal mandates'' that may result in expenditures to State, Tribal, and local governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, UMRA section 205 generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under UMRA section 203 a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this proposed rule contains a Federal mandate that may result in expenditures of $100 million or more for State, Tribal, and local governments, in the aggregate, or the private sector in any 1 year. Accordingly, under UMRA section 202, EPA has prepared a written statement, which is summarized below. A. UMRA Section 202 Written Statement EPA proposes today's storm water regulation pursuant to the specific mandate of Clean Water Act Sec. 402(p)(6), as well as sections 301, 308, 402, and 501. (33 U.S.C. Secs. 1342(p)(6), 1311, 1318, 1342, 1361.) Section 402(p)(6) of the CWA requires that EPA designate sources to be regulated to protect water quality and establish a comprehensive program to regulate those sources. In a separate document in the administrative record, EPA describes the qualitative and monetized benefits associated with the proposed storm water rule and then compares the monetized benefits with the estimated costs for the proposed rule. The Agency also developed a partial monetary estimate of expected benefits for the proposed rule for financial benefits, recreational benefits, and health benefits. Summing the monetized benefits, for each of the scenarios, across these categories results in total benefits ranging from approximately $106 million to $574 million (1997 $) annually for the proposed rule. Because EPA is uncertain of the exact monetized benefit, three benefit scenarios were created and compared to costs for the proposed regulation. In that document, EPA reviewed the potential for this proposed rule to have a significant effect on the economy or upon unemployment and determined that the unemployment impacts will be minimal, if any at all. First, the proposed rule does not address industries involved in production, but rather small municipal separate storm sewer systems and construction sites under 5 acres. Second, flexibility within the proposed rule would allow municipalities to tailor proposed individual municipal storm water program requirements to their needs and financial position. Finally, discussions with representatives within the construction industry indicate that construction costs would likely be passed on to consumers. EPA believes that these same reasons would result in the proposed rule having minimal or no unemployment impacts. EPA also assessed the social costs of the proposed regulation and estimates the total social costs of the proposed rule to range from approximately $141 million to $878 million annually (1997 $). The proposed rule would not have the potential to increase costs for industrial manufacturers and producers because the proposed rule does address storm water discharges from other types of industrial facilities. B. Description of Intergovernmental Consultation Consistent with the intergovernmental consultation provisions of section 204 of the UMRA and Executive Order 12875, Enhancing the Intergovernmental Partnership, EPA consulted with elected representatives of various levels of government in a variety of ways. First, EPA provided States, local, and tribal governments and the private sector with the opportunity to comment on alternative approaches to the proposed regulations through publishing a notice requesting information and public comment on the approach for the CWA section 402(p)(6) regulations in the Federal Register on September 9, 1992 (57 FR 41344). This notice presented a full range of regulatory alternatives under each issue in an attempt to illustrate, and obtain input on, the regulation of unregulated sources to protect water quality. Approximately 43 percent of the more than 130 comments received came from municipalities and 24 percent from State or Federal agencies. These comments provided the genesis for many of the provisions in the proposed storm water rule, including reliance on the NPDES program framework (including general permits), providing State and local governments flexibility in selecting additional sources requiring regulation on a localized basis, focusing on high priority polluters and providing certain exemptions for facilities that do not pollute, focusing on pollution prevention and best management practices, and incorporating watershed-based concerns in targeting. Second, in early 1993, EPA, in conjunction with the Rensselaerville Institute held public and expert meetings to assist in developing and analyzing options for identifying unregulated storm water sources and possible controls. These meetings again allowed participants an opportunity to provide input into the CWA section 402(p)(6) program development process. The proposed rule reflects several of the key concerns identified in these groups, including provisions that provide flexibility to the States and to other [[Page 1604]] permitting authorities to select sources to be controlled in a manner consistent with criteria developed by EPA. Finally, EPA established the Urban Wet Weather Flows Advisory Committee (FACA), including a Storm Water Phase II Subcommittee. Consistent with the Federal Advisory Committee Act, the membership of the Storm Water Phase II Subcommittee was balanced among EPA's various outside stakeholder interests, including representatives from State governments, municipal governments (both elected officials and appointed officials) and tribal governments, as well as industrial and commercial sectors, agriculture, environmental and public interest groups. The Storm Water Phase II Subcommittee met approximately every other month between September 1995 and June 1997. In addition to meetings, conference calls, and correspondence, Subcommittee members were provided three opportunities to comment in writing on preliminary draft approaches and actual drafts of the proposed rule and preamble. Ultimately, the 32 Subcommittee members recommended many of the portions making up the regulatory framework in the proposed rule. C. Selection of the Least Costly, Most Cost-Effective or Least Burdensome Alternative That Achieves the Objectives of the Statute The proposed regulation is based on a ``flexible'' NPDES program alternative. This alternative evolved over time and incorporates aspects of each of the other alternatives in order to respond to concerns presented by the various interests represented in the Storm Water Phase II Subcommittee. A primary characteristic of the proposed rule is the flexibility it offers both the permitting authority and the sources proposed for regulation (small MS4s and small construction sites), such as general permits, best management practices suited to specific locations, and allowing MS4s to develop their own program goals. EPA developed detailed cost estimates for the incremental requirements imposed under the proposed regulation, and for each of the alternatives, and applied these estimates to the potentially regulated universe of remaining unregulated point sources of storm water. The Agency compared the estimated annual range of costs imposed under the proposed regulation and other major options considered. The range of values for each option included the costs for compliance including paperwork requirements for the owners and operators of small construction sites, industrial facilities, and MS4s and administrative costs for State and Federal NPDES permitting authorities. Because the proposed rule provides a significant degree of flexibility to the permitting authority and sources proposed for regulation, the actual costs of implementing the proposed storm water rule are highly dependent on how the program is implemented by the permitting authority and the sources proposed for regulations. To some extent, this flexibility is reflected in the broad ranges of costs. EPA believes that because of the significant flexibility provided by the proposed rule, the low to middle ranges of costs are most representative of the actual costs likely to be incurred. In the administrative record supporting today's proposal, EPA estimated ranges of costs associated with six different options for today's proposal. For each option, EPA estimate a cost range. From the highest of the high estimates to the lowest of the low, the cost range varied between no cost and $79 billion dollars. The least costly, most cost-effective or least burdensome option is the ``no regulation'' option. This option, however, would not achieve the objectives of CWA section 402(p)(6) because remaining unregulated point sources of storm water need to be regulated to protect water quality. The remaining option that is both the least costly, most cost-effective or least burdensome and accomplishes the objectives of the rule is the proposed rule in its current form. Today's proposal represents the lowest cost range option (between $106 million to $574 million dollars). Although Congress did not establish a fund to fully finance implementation of the proposed extension of the existing NPDES storm water program under section 402(p)(6), numerous Federal financing programs (administered by EPA and other Federal agencies) could provide some financial assistance. These programs include CWA section 106 grant program CWA section 104(b)(3) grant program, State surface and ground water management programs under the Safe Drinking Water Act, the environmental quality incentives program, the conservation reserve program, the wetlands reserve program, and the estuary management and Federal monitoring programs. Also, the Natural Resources Conservation Service (NRCS) has some grants available to assist in projects related to erosion and sediment controls. D. Small Government Agency Plan In developing the proposed rule, EPA consulted with small governments pursuant to its interim plan established under UMRA section 203 to address impacts of regulatory requirements in the rule that might significantly or uniquely affect small governments. Though today's proposal would expand the NPDES program (with modifications) to certain municipal separate storm sewer systems serving populations below 100,000 people and though many systems are owned by small governments, EPA does not think the proposed rule might significantly or uniquely affect small governments. As explained in the Regulatory Flexibility Act section of the preamble, EPA today certifies that the proposed rule will not have a significant impact on small governmental jurisdictions. In addition, the proposed requirements would not have a unique impact on small governments because larger governments would also be affected. Notwithstanding this finding, the Agency sought to provide elected officials of small governments (and their representatives) with an opportunity for early and meaningful participation through FACA process. In addition, EPA is committed to providing guidance for the operators of the municipal separate storm sewer systems (which would likely include small governments) developed in conjunction with the Storm Water Phase II FACA Subcommittee. As mentioned previously, 43 percent of the comments received on the September 9, 1992, notice were from municipal governments. In addition, the following groups participated as members of the Storm Water Phase II FACA Subcommittee: the Conference of Mayors, the National League of Cities, the National Association of Towns and Townships, the National Association of Counties, the CSO Partnership, the Water Environment Federation, and the Association of Metropolitan Sewerage Agencies. Through such participation and exchange, EPA notified potentially affected small governments of requirements under consideration, allowed officials of affected small governments to have meaningful and timely input into the development of regulatory proposals, and will inform, educate, and advise small governments on compliance with the regulatory requirements. The Agency is also undertaking efforts to develop a ``tool box'' of aids (e.g., fact sheets, guidance, information clearinghouse, training, education, research, and pilot programs) to be made available to regulated entities and permitting authorities to facilitate implementation of today's proposed regulation. [[Page 1605]] VI. Executive Order 12898 Executive Order 12898 established a Federal policy for incorporating environmental justice into Federal agency missions by directing agencies to identify and address in their programs, policies, and activities, as appropriate, the disproportionately high and adverse human health or environmental effects on minority and low-income populations. EPA ensured proper consideration of environmental justice concerns during the section 402(p)(6) rulemaking by selecting a balanced FACA membership and specifically inviting a representative of the Environmental Justice Information Center to participate on the Storm Water Phase II FACA Subcommittee. EPA examined the potential impact of today's proposed storm water rule on minority and low-income populations and worked to develop a proposed rule that would address environmental justice concerns. Discussions with the Storm Water Phase II FACA Subcommittee contributed to these efforts. Three aspects of today's proposed storm water regulation would support environmental justice objectives. First, the proposed rule would result in improvements in water quality in the areas around small municipalities and certain industries that impact water quality. These improvements would benefit all persons living in or using these areas, including minority populations and low-income populations. Second, the proposed rule would provide a high degree of flexibility to the NPDES permitting authority to address high priority contaminated storm water discharges based on community input and public participation. This ability to focus program requirements on priority needs or areas should serve as an additional tool to address environmental justice concerns. Third, the proposed rule specifies that public education and outreach programs required of small municipal separate storm sewer systems should be tailored to address the concerns of all communities, particularly minority and disadvantaged communities, as well as children. The proposed rule also specifies that compliance with required public involvement and participation requirements should include efforts to engage all economic and ethnic groups. In addition, partly in consideration of the executive order, EPA proposes to exempt Tribes in urbanized areas with populations of less than 1,000 from the requirements of today's proposed rule. VII. Regulatory Flexibility Act Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), whenever EPA is required to publish notice of general rulemaking, EPA must prepare an initial regulatory flexibility analysis (IRFA) describing the economic impact of the proposal on small entities, unless the Administrator certifies that a proposed rule will not have a ``significant economic impact on a substantial number of small entities.'' After consideration of the economic impacts of today's proposed rule on small entities, the Administrator certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding today's certification, EPA has prepared an IRFA. In addition, prior to determining that today's proposal should be certified, EPA convened a Small Business Advocacy Review Panel under the RFA, as amended by the Small Business Regulatory Fairness Act (SBREFA), to evaluate and minimize the potential impacts of the proposed rule on small entities. A. Economic Impact on Small Entities EPA assessed the potential economic impact of today's proposed storm water regulation on small entities. As the first step in its evaluation, EPA identified those small entities potentially affected by the proposal. In identifying these small entities, EPA used the definitions of small businesses, small governmental jurisdictions (e.g., municipalities), and small organizations (e.g., nonprofit organizations) established by the RFA. Based on data from the 1990 U.S. Census, EPA estimated that a total of 3,614 small governmental jurisdictions (specifically, municipalities) would be affected by the proposed rule. In addition, 11 Indian Tribes, as small governmental jurisdictions who own/operate municipal separate storm sewer systems, would also be affected. Next, EPA estimated that 187,610 construction firms in Standard Industrial Classification (SIC) Code 15 would be subject to the proposal, if adopted. EPA recognizes, however, that this number may over-estimate the number of small businesses subject to the proposal. The data do not permit the Agency to distinguish between small construction firms whose activities include land clearing and site preparation--the proposal's requirements would apply to such operations--and those small construction firms that do not prepare sites. Finally, the proposed rule would not apply to any small not-for- profit organizations. In the next step of the Agency's evaluation, EPA analyzed the potential economic impact of the proposed rule on the small entities it had identified as likely to be subject to the proposed rule. In the case of those small municipalities that would be affected if the proposal is adopted, EPA evaluated the potential impact using a ``revenue test.'' Under this test, EPA looked at the total annual cost of complying with the proposed requirements in relation to total annual municipal revenues. EPA calculated total annual compliance cost based on mean costs ($2.67 per capita and $555 per municipality) and the population reported in the 1990 Census. EPA estimated annual revenues based on data from the 1992 Census of Governments, using state-specific estimates of annual revenue per capita for municipalities in three population size categories (fewer than 10,000, 10,000-25,000, and 25,000-50,000). Based on this evaluation, the Administrator certifies that today's proposed storm water rule will not have a significant economic impact on a substantial number of small municipalities. Estimated compliance costs represent more than 1 percent of estimated revenues for only 62 municipalities of the affected small municipalities--approximately 1.7 percent of small municipalities--and less than 3 percent of estimated revenues for all but 4 municipalities--approximately 0.1 percent of affected small municipalities. In both absolute and relative terms, the impact is not significant. EPA also assessed the potential impact of the rule on Indian Tribes using the same revenue test applied to municipalities. However, revenue per capita for tribal governments was not available. Therefore, EPA used the State-specific municipal per capita revenue estimates by size category and adjusted these estimates downward based on the ratio of per capita income on the reservation to per capita income for the State. EPA then multiplied the adjusted estimates of per capita revenue by the reservation population and conducted the screening analysis in the same manner as for municipalities (assuming annual compliance costs of $2.67 per capita and $555 per reservation). EPA assumed that all Tribes with populations between 1,000 and 100,000 would have to comply with the rule and Tribes in Oklahoma would [[Page 1606]] not be regulated.\5\ Estimated compliance costs represent more than 1 percent of total estimated revenues for only 2 Indian Tribes. The remaining 9 Indian Tribes have compliance costs less than 1 percent of estimated revenues. The Administrator therefore certifies that this rule will not have a significant economic impact on a substantial number of small governmental jurisdictions regardless of whether the municipal and tribal impacts are analyzed separately or combined. --------------------------------------------------------------------------- \5\ The determination of applicability to Oklahoma Tribes would be done on a case-by-case basis. In authorization of the Oklahoma NPDES program, EPA retained jurisdiction to regulate discharges in Indian Country (61 FR 65049, 12/10/96). However, EPA believes it is unlikely that large populations of Oklahoma Tribes would fall within areas that would be determined to be a Federal Indian Reservation, and thus, subject to regulation (see preamble). --------------------------------------------------------------------------- For small businesses, in most instances, EPA evaluates the potential impact by using a ``sales test.'' Under a sales test, EPA compares the cost of complying with proposed requirements to a small business' total annual sales. In developing the inputs to this test, EPA calculated the compliance costs based on ``unit costs'' (i.e., compliance costs per single-family home) rather than costs per developer/contractor because of the uncertainties associated with estimating how many units an ``average'' developer/contractor might develop or build in a typical year. Therefore, EPA's analysis was not exactly a ``sales test,'' but was developed to derive the kind of results that are comparable to results from a sales test. EPA approximated the sales test by estimating compliance costs for single- family homes under various scenarios and comparing those costs with the median sales price of a single-family home. The results of this approximation show that the cost of complying with the proposed rule will not exceed 1 percent of the average sales price of a single family home for an array of the most likely economic and regulatory scenarios. EPA reached this conclusion after controlling for sites of different size and the changes in compliance costs per site (i.e., single family home) that depend upon the need to implement erosion and sediment controls as a result of the proposed rule. Because of the absence of data to specifically assess compliance costs per developer/contractor as a percentage of total annual sales (i.e., a very direct estimate of the impact on potentially affected small businesses), EPA performed additional market analysis to examine the ability of potentially affected firms to pass along regulatory costs to buyers for single-family homes constructed using the storm water control program proposed today. Obviously, if the small construction companies that would be subject to the proposal are able to pass the costs of compliance, either completely or partially, on to their purchasers, then the proposed rule's impact is significantly reduced. EPA conducted this supplemental analysis using available data and published economic literature. The analysis evaluated the potential effects of complying with this proposed rule on the market for single- family houses for both the short and long term including potential changes in the price and sales of single-family homes. The Agency assessed the effect on average monthly mortgage rates for a range of potential interest rates. EPA has concluded that the costs to site developers and building contractors, and the potential changes in housing prices and monthly mortgage payments for single-family home buyers, are not expected to have a significant impact on the market for single-family houses including most potentially affected small firms that are actively participating in this market. EPA's analysis projects the impact of the rule on small site developers and building contractors will be minimal because these companies are expected to pass regulatory costs on to home buyers without a significant impact on sales. Based on this assessment, the Administrator also certifies that the proposal will not have a significant economic impact on a substantial number of small businesses. B. SBREFA Panel Process As previously explained earlier in the preamble, EPA has conducted an extensive outreach effort in developing today's storm water proposal. EPA held a number of public and expert meetings to assist in preparing the proposal, and the Agency established a FACA Committee specifically to provide a forum for addressing storm water issues. EPA also convened a Small Business Advocacy Review Panel (``Panel''), as described in RFA section 609, in June 1997. Because EPA's economic assessment was incomplete, the Agency was not initially certain whether the proposed rule would have a significant economic impact on a substantial number of small entities. A number of small entity representatives were actively involved with EPA through the FACA process, and were, therefore, broadly knowledgeable about the proposal under development. Prior to convening the Panel, EPA consulted with the Small Business Administration to identify a group of small entity representatives to advise the Panel. The Agency distributed a briefing package describing its preliminary analysis under the RFA to this group (as well as to representatives from the Office of Management and Budget and the Small Business Administration) and also conducted two telephone conference calls and an all-day meeting at EPA Headquarters in May of 1997. With this preliminary work complete, in June 1997, EPA formally convened the interagency Panel, comprising representatives from the Office of Management and Budget, the Small Business Administration, EPA's Office of Water and EPA's Small Business Advocacy Chair. The Panel received written comments from representatives based on their involvement in the earlier meetings, and invited additional comments to be submitted during the term of the Panel itself. Consistent with RFA requirements, the Panel evaluated the assembled materials and small-entity comments on issues related to: (1) a description and number of small entities to which the proposed rule would apply; (2) a description of the projected record keeping, reporting and other compliance requirements applicable to small entities; (3) identification of other Federal rules that may duplicate, overlap, or conflict with the proposed rule; and (4) regulatory alternatives that would minimize any significant economic impact of the proposed rule on small entities that would also accomplish the stated objectives of the CWA section 402(p)(6). On August 7, 1997, the Panel provided a Final Report (hereinafter, ``Report'') to the EPA Administrator. The Report noted that, because of the extensive outreach conducted by the Agency, and due to the Agency's responsiveness in addressing stakeholder concerns, small entity representatives raised fewer concerns than might otherwise have been expected. A copy of the Report is included in the docket for this proposed rule. Notwithstanding today's certification that the proposed rule will not have a significant economic impact on a substantial number of small entities, the Agency has incorporated many of the Panel's recommendations into today's proposal. The Panel acknowledged and commended EPA's efforts prior to its Report to work with stakeholders, including small entities, through the Storm Water Phase II FACA Subcommittee. As discussed in the Background section of this preamble (Section I.F. The FACA Committee [[Page 1607]] Effort) the subcommittee provided extensive input in the development of today's proposal. The Agency also provided FACA members with copies of the Economic Analysis of the proposal, which includes the initial regulatory flexibility analysis. EPA has sought to build upon the recommendations made by members of the federal advisory committee and has responded to numerous issues raised by them concerning the scope, method, and timing of the program outlined in today's proposal. The SBREFA Panel stated that, because of the extensive outreach conducted by the Agency and the Agency's responsiveness in addressing stakeholder concerns, commenters during the SBREFA process raised fewer concerns than might otherwise have been expected. Based on the advice and recommendations of the Storm Water Phase II FACA Subcommittee, as well as the Panel Report, the proposal includes a number of provisions designed to minimize any significant impact of the proposed rule on small entities as explained below and in Appendix 5 of today's notice. Municipal representatives commented to the Panel that small municipal separate storm sewers systems in urbanized areas serving less than 1,000 people might lack the capacity to certify that their discharges do not have significant adverse water quality impacts. EPA responded that the technical basis for such certification would generally be produced by the permitting authority, in the form of a TMDL or watershed plan. The Panel was concerned, however, that in the absence of a TMDL or watershed plan developed by other parties (i.e., States or EPA), municipalities under 1,000 would have difficulty taking advantage of this waiver provision. The Panel recommended that EPA invite comment on this issue, and EPA has done so (Section II.G.3, NPDES Permitting Authority's Role--Provide Waivers). Municipal representatives also suggested to the Panel that small municipal separate storm sewer systems serving less than 1,000 people in urbanized areas should be automatically exempt, just as EPA is proposing to exempt systems operated by Tribes of less than 1,000. As further explained in Section F., Tribal Role, EPA believes that the situations of very small Tribes are not comparable to those of small municipalities because Tribes cannot generally rely on administrative support from a State permitting authority in the way municipalities can. Based on the positions taken by OMB and SBA in the Report, however, EPA has agreed to request comment on this issue as well. Other small business representatives also questioned the Panel about the proposed comprehensive program to regulate construction activities that result in the land disturbance of 1 acre up to 5 acres. The Panel recommended that EPA revise the preamble to the proposed rule to invite comment on alternatives to the proposed requirements, including a discussion of the concerns expressed by small entity representatives and their specific suggestions for addressing them. The Agency has included the suggested alternatives in its discussion of construction requirements in this preamble, in Section II. I. Other Designated Storm Water Discharges. Both municipal and industrial representatives commented to the Panel that, to avoid redundance, requirements for construction activities undertaken by municipalities or industrial facilities should be incorporated within their respective permits (provided that the permits detail sediment and erosion controls). Similarly, municipal representatives commented that requirements for industrial facilities operated by municipalities should be covered under municipal storm water permits. The Panel recommended that EPA explore and request comment on these ideas in the preamble of the proposed rule. The Panel reported that these options may be appropriate for municipalities or industrial facilities with individually-issued NPDES permits, but may be difficult to administer under NPDES general permits. The Agency has discussed and solicited comment on the first two of these options-- condensing construction requirements into a single municipal or industrial storm water permit--as part of the preamble discussion of construction requirements, in Section II.I. Other Designated Storm Water Discharges. The Agency has discussed and solicited comment on the third of these options--condensing industrial storm water requirements for municipally owned or operated industrial facilities into a single municipal storm water permit--in the preamble as part of the discussion of industrial requirements, in Section II.I.3. Other Sources. The Panel also received comments on a preliminary draft of the revisions to the existing storm water rules providing relief to parties certifying ``no exposure'' to rainfall events that could produce storm water runoff. Commenters indicated that, as drafted, the provision would preclude such certification (and thus deny appropriate exemption from permitting requirements) to certain deserving facilities. Such facilities include those that undergo a ``temporary operational change'' or that maintain vehicles outdoors without generating pollution. The Panel recommended that the Agency discuss these comments with the Urban Wet Weather Flows FACA Committee and revise the proposal as far as possible to allow all facilities preventing the actual discharge of pollutants to make use of the ``no exposure'' EPA complied with that recommendation as well. In addition to looking for ways to redesign today's proposal to limit its impacts on small entities, the Agency has been working with the Storm Water Phase II Subcommittee to develop considerable support for implementation through the ``tool box'' approach discussed in the Section II.A.5. of this preamble. The tool box would include fact sheets, guidances, an information clearinghouse, training and outreach efforts, technical research, and support for demonstration projects. EPA's outreach to small entities covered by this proposal and its accommodation of their legitimate needs have been aggressive and highly responsive. The Agency actively invites comments on all aspects of the proposal and its impacts on small entities so that the final rule will reflect the most auspicious balance between necessary environmental protection and appropriate respect for the genuine limitations of small entities in understanding and complying with applicable requirements. VIII. National Technology Transfer and Advancement Act Under Sec. 12(d) of the National Technology Transfer and Advancement Act, the Agency is required to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. ``Voluntary consensus standards'' are ``technical standards'' (e.g., materials specifications, test methods, sampling procedures, business practices, management systems practices, etc.) that are developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by EPA, the Act requires the Agency to provide Congress, through the Office of Management and Budget, an explanation of the reasons for not using such standards. Today's proposed rule would not even prescribe nationally applicable substantive control standards, either for construction site storm water or municipal storm sewers. Such control standards would be developed on a [[Page 1608]] State or local basis. Thus, as a threshold matter, the concept of ``technical standards'' would not apply to the regulatory activities proposed today. EPA requests comment on these findings. If a commenter believes that today's rule relies on technical standards, the Agency also solicits information about the identification and possible use of any potentially applicable voluntary consensus standards for the final rule. List of Subjects in 40 CFR Parts 122 and 123 Environmental protection, Administrative procedure, Water pollution control. Dated: December 15, 1997. Carol M. Browner, Administrator. Appendices to the Preamble Appendix 1 to Preamble--Federally-Recognized American Indian Areas Located in Bureau of the Census Urbanized Areas [Based on 1990 Census data] ---------------------------------------------------------------------------------------------------------------- State American Indian area Urbanized area ---------------------------------------------------------------------------------------------------------------- AZ................ Pascua Yacqui Reservation (pt.), Pascua Tuscon, AZ (Phase I). Yacqui Tribe of Arizona. AZ................ Salt River Reservation (pt.), Salt River Pima- Phoenix, AZ (Phase I). Maricopa Indian Community of the Salt River Reservation, California. AZ................ San Xavier Reservation (pt.), Tohono O'odham Tucson, AZ (Phase I). Nation of Arizona (formerly known as the Papago Tribe of the Sells, Gila Bend & San Xavier Reservation). CA................ Augustine Reservation, Augustine Band of Indio-Coachella, CA (Phase I). Cahuilla Mission of Indians of the Augustine Reservation, CA. CA................ Cabazon Reservation, Cabazon Band of Cahuilla Indio-Coachella, CA (Phase I). Mission Indians of the Cabazon Reservation, CA. CA................ Fort Yuma (Quechan) (pt.), Quechan Tribe of Yuma, AZ-CA. the Fort Yuma Indian Reservation, California and Arizona. CA................ Redding Rancheria, Redding Rancheria of Redding, CA. California. FL................ Hollywood Reservation, Seminole Tribe........ Fort Lauderdale, FL (Phase I). FL................ Seminole Trust Lands, Seminole Tribe of Fort Lauderdale, FL (Phase I). Florida, Dania, Big Cypress and Brighton Reservations. ID................ Fort Hall Reservation and Trust Lands, Pocatello, ID. Shosone-Bannock Tribes of the Fort Hall Reservation of Idaho. ME................ Penobscot Reservation and Trust Lands (pt.), Bangor, ME. Penobscot Tribe of Maine. MN................ Shakopee Community, Shakopee Mdewakanton Minneapolis-St. Paul, MN (Phase I). Sioux Community of Minnesota (Prior Lake). NM................ Sandia Pueblo (pt.), Pueblo of Sandia, New Albuquerque, NM (Phase I). Mexico. NV................ Las Vegas Colony, Las Vegas Tribe of Paiute Las Vegas, NV (Phase I). Indians of the Las Vegas Indian Colony, Nevada. NV................ Reno-Sparks Colony, Reno-Sparks Indian Reno, NV (Phase I). Colony, Nevada. OK................ Osage Reservation (pt.), Osage Nation of Tulsa, OK (Phase I). Oklahoma. OK................ Absentee Shawnee-CitizensBand of Potawatomi Oklahoma City, OK (Phase I). TJSA (pt.), Absentee-Shawnee Tribe of Indians of Oklahoma, Citizen Potawatomi Nation, Oklahoma. OK................ Cherokee TJSA 9 (pt.), Cherokee Nation of Ft. Smith, AR-OK; Tulsa, OK (Phase I). Oklahoma, United Keetoowah Band of Cherokee Indians of Oklahoma. OK................ Cheyenne-Arapaho TJSA (pt.), Cheyenne-Arapaho Oklahoma City, OK (Phase I). Tribes of Oklahoma. OK................ Choctaw TJSA (pt.), Choctaw Nation of Ft. Smith, AR-OK (Phase I). Oklahoma. OK................ Creek TJSA (pt.), Alabama-Quassarte Tribal Tulsa, OK (Phase I). Town of the Creek Nation of Oklahoma, Kialegee Tribal Town of the Creek Indian Nation of Oklahoma, Muscogee (Creek) Nation of Oklahoma, Thlopthlocco Tribal Town of the Creek Nation of Oklahoma. OK................ Kiowa-Comanche-Apache-Ft. Sill Apache, Apache Lawton, OK. Tribe of Oklahoma, Comanche Indian Tribe, Oklahoma, Fort Sill Apache Tribe of Oklahoma, Kiowa Indian Tribe of Oklahoma. TX................ Ysleta del Sur Reservation, Ysleta Del Sur El Paso, TX-NM (Phase I). Pueblo of Texas. WA................ Muckleshoot Reservation and Trust Lands Seattle, WA (Phase I). (pt.), Muckleshoot Indian Tribe of the Muckleshoot Reservation. WA................ Puyallup Reservation and Trust Lands (pt.), Tacoma, WA (Phase I). Puyallup Tribe of the Puyallup Reservation, WA. WA................ Yakima Reservation (pt.), Confederated Tribes Yakima, WA. and Bands of the Yakama Indian Nation of the Yakama Reservation, WA. WI................ Oneida (West) (pt.), Oneida Tribe of Green Bay, WI. Wisconsin. ---------------------------------------------------------------------------------------------------------------- Please Note: ``(pt.)'' indicates that the American Indian Area (AIA) listed is only partially located within the referenced urbanized area. ``(Phase I)'' indicates that the urbanized area includes a medium or large MS4 currently regulated under the existing NPDES storm water program (i.e. Phase I). The first line under ``American Indian Area'' is the name of the reservation/colony/rancheria as it appears in the Bureau of the Census data. Under this first line, the names of the tribes included in the AIA are listed as they appear on the Bureau of Indian Affairs' list of Federally Recognized Indian Tribes. [Federal Register: Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216] Information for Tribal Jurisdiction Statistical Areas (TSJAs) in Oklahoma was also included in the table. These areas are defined in conjunction with the Federally-recognized tribes in Oklahoma who have definite land areas under their jurisdiction, but do not have reservation status. Sources: Mike Radcliffe, Geography Division, Bureau of the Census. 1990 Census of Population and Housing, Summary Population and Housing Characteristics, United States. Tables 9 & 10. [1990 CPH-1-1]. Federal Register: Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216. BILLING CODE 6560-55-P [[Page 1609]] [GRAPHIC] [TIFF OMITTED] TP09JA98.000 BILLING CODE 6560-50-C [[Page 1610]] Appendix 3 to Preamble--Urbanized Areas of the United States and Puerto Rico (based on 1990 Census data) Alabama Anniston Auburn--Opelika Birmingham Columbus, GA--AL Decatur Dothan Florence Gadsden Huntsville Mobile Montgomery Tuscaloosa Alaska Anchorage Arizona Phoenix Tucson Yuma, AZ--CA Arkansas Fayetteville-Springdale Fort Smith, AR--OK Little Rock--North Little Rock Memphis, TN--AR--MS Pine Bluff Texarkana, AR--TX California Antioch--Pittsburgh Bakersfield Chico Davis Fairfield Fresno Hemet--San Jacinto Hesperia--Apple Valley--Victorville Indio--Coachella Lancaster--Palmdale Lodi Lompoc Los Angeles Merced Modesto Napa Oxnard--Ventura Palm Springs Redding Riverside--San Bernardino Sacramento Salinas San Diego San Francisco--Oakland San Jose San Luis Obispo Santa Barbara Santa Cruz Santa Maria Santa Rosa Seaside--Monterey Simi Valley Stockton Vacaville Visalia Watsonville Yuba City Yuma Colorado Boulder Colorado Springs Denver Fort Collins Grand Junction Greeley Longmont Pueblo Connecticut Bridgeport--Milford Bristol Danbury, CT--NY Hartford--Middletown New Britain New Haven--Meriden New London--Norwich Norwalk Springfield, MA--CT Stamford, CT--NY Waterbury Worcester, MA--CT Delaware Dover Wilmington, DE--NJ--MD--PA District of Columbia Washington, DC--MD--VA Florida Daytona Beach Deltona Fort Lauderdale--Hollywood--Pompano Beach Fort Myers--Cape Coral Fort Pierce Fort Walton Beach Gainesville Jacksonville Kissimmee Lakeland Melbourne--Palm Bay Miami--Hialeah Naples Ocala Orlando Panama City Pensacola Punta Gorda Sarasota--Bradenton Spring Hill Stuart Tallahassee Tampa--St. Petersburg--Clearwater Titusville Vero Beach West Palm Beach--Boca Raton--Delray Beach Winter Haven Georgia Albany Athens Atlanta Augusta Brunswick Chattanooga Columbus Macon Rome Savannah Warner Robins Hawaii Honolulu Kailua Idaho Boise City Idaho Falls Pocatello Illinois Alton Aurora Beloit, WI--IL Bloomington--Normal Champaign--Urbana Chicago, IL--Northwestern IN Crystal Lake Davenport--Rock Island--Moline, IA--IL Decatur Dubuque Elgin Joliet Kankakee Peoria Rockford Round Lake Beach--McHenry, IL--WI St. Louis, MO--IL Springfield Indiana Anderson Bloomington Chicago, IL--Northwestern IN Elkhart--Goshen Evansville, IN--KY Fort Wayne Indianapolis Kokomo Lafayette--West Lafayette Louisville, KY--IN Muncie South Bend--Mishawaka, IN--MI Terre Haute Iowa Cedar Rapids Davenport--Rock Island--Moline, IA--IL Des Moines Dubuque, IA--IL--WI Iowa City Omaha, NE--IA Sioux City, IA--NE--SD Waterloo--Cedar Falls Kansas Kansas City, MO--KS Lawrence St. Joseph, MO--KS Topeka Wichita Kentucky Cincinnati, OH--KY Clarksville, TN--KY Evansville, IN--KY Huntington--Ashland, WV--KY--OH Lexington-Fayette Louisville, KY-IN Owensboro Louisiana Alexandria Baton Rouge Houma Lafayette Lake Charles Monroe New Orleans Shreveport Slidell Maine Bangor [[Page 1611]] Lewiston--Auburn Portland Portsmouth--Dover--Rochester, NH--ME Maryland Annapolis Baltimore Cumberland Frederick Hagerstown, MD--PA--WV Washington, DC--MD--VA Wilmington, DE--NJ--MD--PA Massachusetts Boston Brockton Fall River, MA--RI Fitchburg--Leominster Hyannis Lawrence--Haverhill, MA--NH Lowell, MA--NH New Bedford Pittsfield Providence--Pawtucket, RI--MA Springfield, MA--CT Taunton Worcester, MA--CT Michigan Ann Arbor Battle Creek Bay City Benton Harbor Detroit Flint Grand Rapids Holland Jackson Kalamazoo Lansing--East Lansing Muskegon Port Huron Saginaw South Bend--Mishawaka, IN--MI Toledo, OH-MI Minnesota Duluth, MN--WI Fargo--Moorhead, ND--MN Grand Forks, ND--MN La Crosse, WI--MN Minneapolis--St.Paul Rochester St. Cloud Mississippi Biloxi--Gulfport Hattiesburg Jackson Memphis, TN--AR--MS Pascagoula Missouri Columbia Joplin Kansas City, MO--KS St. Joseph, MO--KS St. Louis, MO--IL Springfield Montana Billings Great Falls Missoula Nebraska Lincoln Omaha, NE--IA Sioux City, IA--NE--SD Nevada Las Vegas Reno New Hampshire Lawrence--Haverhill, MA--NH Lowell, MA--NH Manchester Nashua Portsmouth--Dover--Rochester, NH--ME New Jersey Allentown--Bethlehem--Easton, PA--NJ Atlantic City New York, NY--Northeastern NJ Philadelphia, PA-NJ Trenton, NJ--PA Vineland--Millville Wilmington, DE--NJ--MD--PA New Mexico Albuquerque El Paso Las Cruces Santa Fe New York Albany--Schenectady--Troy Binghamton Buffalo--Niagara Falls Danbury, CT--NY Elmira Glens Falls Ithaca Newburgh New York, NY--Northeastern NJ Poughkeepsie Rochester Stamford, CT--NY Syracuse Utica--Rome North Carolina Asheville Burlington Charlotte Durham Fayetteville Gastonia Goldsboro Greensboro Greenville Hickory High Point Jacksonville Kannapolis Raleigh Rocky Mount Wilmington Winston-Salem North Dakota Bismark Fargo--Moorhead, ND--MN Grand Forks, ND-MN Ohio Akron Canton Cincinnati, OH--KY Cleveland Columbus Dayton Hamilton Huntington--Ashland, WV--KY--OH Lima Lorain--Elyria Mansfield Middletown Newark Parkersburg, WV--OH Sharon, PA--OH Springfield Steubenville--Weirton, OH--WV--PA Toledo, OH-MI Wheeling, WV-OH Youngstown--Warren Oklahoma Fort Smith, AR--OK Lawton Oklahoma City Tulsa Oregon Eugene--Springfield Longview Medford Portland--Vancouver, OR--WA Salem Pennsylvania Allentown--Bethlehem--Easton, PA--NJ Altoona Erie Hagerstown, MD--PA--WV Harrisburg Johnstown Lancaster Monessen Philadelphia, PA--NJ Pittsburgh Pottstown Reading Scranton--Wilkes-Barre Sharon, PA--OH State College Steubenville--Weirton, OH--WV--PA Trenton, NJ--PA Williamsport Wilmington, DE--NJ--MD--PA York Rhode Island Fall River, MA--RI Newport, RI Providence--Pawtucket, RI--MA South Carolina Anderson Augusta, GA--SC Charleston Columbia Florence Greenville Myrtle Beach Rock Hill Spartanburg Sumter South Dakota Rapid City Sioux City, IA--NE--SD Sioux Falls Tennessee Bristol, TN--Bristol, VA Chattanooga, TN--GA Clarksville, TN--KY Jackson Johnson City [[Page 1612]] Kingsport, TN--VA Knoxville Memphis, TN--AR--MS Nashville Texas Abilene Amarillo Austin Beaumont Brownsville Bryan--College Station Corpus Christi Dallas--Fort Worth Denton El Paso, TX--NM Galveston Harlingen Houston Killeen Laredo Lewisville Longview Lubbock McAllen--Edinburg--Mission Midland Odessa Port Arthur San Angelo San Antonio Sherman--Denison Temple Texarkana, TX--Texarkana, AR Texas City Tyler Victoria Waco Wichita Falls Utah Logan Ogden Provo--Orem Salt Lake City Vermont Burlington Virginia Bristol, TN--Bristol, VA Charlottesville Danville Fredericksburg Kingsport, TN--VA Lynchburg Norfolk--Virginia Beach--Newport News Petersburg Richmond Roanoke Washington, DC--MD--VA Washington Bellingham Bremerton Longview, WA--OR Olympia Portland--Vancouver, OR--WA Richland--Kennewick--Pasco Seattle Spokane Tacoma Yakima West Virginia Charleston Cumberland, MD--WV Hagerstown, MD--PA--WV Huntington--Ashland, WV--KY--OH Parkersburg, WV--OH Steubenville--Weirton, OH--WV--PA Wheeling, WV--OH Wisconsin Appleton--Neenah Beloit, WI--IL Duluth, MN--WI Eau Claire Green Bay Janesville Kenosha La Crosse, WI--MN Madison Milwaukee Oshkosh Racine Round Lake Beach--McHenry, IL--WI Sheboygan Wausau Wyoming Casper Cheyenne Puerto Rico Aquadilla Arecibo Caguas Cayey Humacao Mayaguez Ponce San Juan Vega Baja--Manati Appendix 4 to Preamble Checklist for No-Exposure Certification for NPDES Storm Water Permitting Instructions--EPA Form XXX-X Who May File a No-Exposure Certification In accordance with the Clean Water Act, all industrial facilities that discharge storm water meeting the definition of storm water associated with industrial activity must apply for coverage under a National Pollutant Discharge Elimination System (NPDES) permit. However, permit coverage is not required at facilities that can certify a ``no-exposure'' condition exists. This document may be used to certify that at the facility described herein, a condition of no-exposure exists. This certification is under the auspices of the EPA only and must be made at least once every five years. Should the industrial activity change such that a condition of no-exposure no longer exists, this certification is no longer valid and coverage under an NPDES storm water permit must be sought. Definition of No-Exposure No-exposure exists at an industrial facility when all industrial materials or activities, including, but not limited to, material handling equipment, industrial machinery, raw materials, intermediate products, by-products or waste products, however packaged, are protected by a storm-resistant shelter so as not to be exposed to rain, snow, snowmelt, or runoff. Adequately maintained mobile equipment (trucks, automobiles, trailers or other such general purpose vehicles found at the industrial site which themselves are not industrial machinery or material handling equipment and which are not leaking contaminants or are not otherwise a source of industrial pollutants) may be exposed to precipitation or runoff. Completing the Form You must type or print in the spaces provided only. One form must be completed for each facility or site for which you are seeking to certify no-exposure. Section I. Facility Operator Information Provide the legal name (no colloquial names) of the person, firm, public organization, or any other entity that operates the facility or site described in this certification. The name of the operator may or may not be the same as the name of the facility. The operator is the legal entity that controls the facility's operation, rather than the plant or site manager. Enter the complete address (P.O. Box numbers OK) and telephone number of the operator. Section II. Facility/Site Location Information Enter the facility's or site's official or legal name and complete street address (directional address OK if no street address exists). Do not provide a P.O. Box number as the street address. In addition, provide the latitude and longitude of the facility to the nearest 15 seconds of the approximate center of the site (if you do not know your site's latitude and longitude, call 1-800-USA-MAPS). Section III. Exposure Checklist Circle ``Yes'' or ``No'' as appropriate to describe conditions at your facility. For the purposes of this document, ``material'' is defined as any raw material, intermediate product, finished product, by-product or waste product, however packaged. ``Material handling activities'', by definition, include storage, loading and/or unloading, transportation or conveyance of a raw material, intermediate product, finished product, by-product or waste product. Interpretation of Results If you answer ``Yes'' to ANY of questions a. through r. in Section III, a potential for exposure exists at your site and you cannot certify a no-exposure condition exists. You must obtain (or already have) coverage under an NPDES Storm Water permit. After obtaining permit coverage, you can institute modifications to eliminate the potential for a discharge of storm water exposed to industrial activity, and then claim no-exposure and terminate coverage under the existing permit. Section IV. Certification Federal statutes provide for severe penalties for submitting false information on this application form. Federal regulations require this application to be signed as follows: For a corporation: by a responsible corporate officer, which means: (i) president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision making functions, or (ii) the manager of one or more manufacturing, production, or operating [[Page 1613]] facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars) if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures [note, wording subject to change as a result of NPDES streamlining, rnd. II]; For a partnership or sole proprietorship: by a general partner or the proprietor; or For a municipality, State, Federal, or other public facility: by either a principal executive officer or ranking elected official. Where To File This Form Mail the completed form to: XXXXXXXXXXXXXXX XXXXXXXXXXXXXXX U.S. Environmental Protection Agency (4203) 401 M St. SW Washington, DC 20460 BILLING CODE 6560-50-P [[Page 1614]] [GRAPHIC] [TIFF OMITTED] TP09JA98.002 [[Page 1615]] [GRAPHIC] [TIFF OMITTED] TP09JA98.003 BILLING CODE 6560-50-C Appendix 5 to Preamble--Regulatory Flexibility for Small Entities A. Regulatory Flexibility for Municipal Storm Sewer Systems (MS4s) Different Compliance, Reporting, or Timetables That Are Responsive to Resources of Small Entities NPDES permitting authority would issue general permits instead of requiring individual permits. This flexibility would avoid the high application costs and administrative burden associated with individual permits. NPDES permitting authority could specify a time period of up to five years for small MS4s to fully develop and implement their program. Analytic monitoring would not be required. After the first permit term and subsequent permit terms, submittal of a summary report would only be required in years two and four. Phase I municipalities are currently required to submit a detailed report each year. Brief reporting format encouraged to facilitate compiling and analyzing data from submitted reports. EPA would develop a model form for this purpose. Clarifying, Consolidating, or Simplifying Compliance and Reporting Requirements The proposed rule would avoid duplication in permit requirements by allowing the NPDES permitting authority to incorporate by reference State, Tribal, or local programs under a NPDES general permit. Compliance with these programs would be considered compliance with the NPDES general permit. The proposed rule would allow the NPDES permitting authority to recognize existing responsibilities among different municipal entities to satisfy obligations for the minimum control measures. For example, a State program may address construction site storm water runoff. Municipalities would be relieved of that obligation and would only be responsible for the remaining minimum control measures. The proposed rule would allow a small MS4 to satisfy its NPDES permit obligations if another governmental entity is already implementing a minimum control measure in the jurisdiction of the small MS4. The following conditions would need to be met: 1. The particular control measure (or component thereof) is equivalent to what the NPDES permit requires, 2. The other entity is implementing the control measure, and 3. The small MS4 has requested, and the other entity has agreed to accept responsibility for implementation of the control measure on your behalf and to satisfy your permit obligation. The proposed rule would allow a covered small MS4 to ``piggy- back'' on to the storm water management program of an adjoining Phase I MS4. A small MS4 would be waived from the application requirements of Sec. 122.26(d)(1)(iii), (iv) and (d)(2)(iii) [discharge characterization] and may satisfy the requirements of Sec. 122.26(d)(1)(v) and (d)(2)(iv) [identifying a management plan] by referencing the adjoining Phase I MS4's storm water management plan. The proposed rule would accommodate the use of the watershed approach through NPDES general permits that could be issued on a watershed basis. A municipality could develop measures that are tailored to meet their watershed requirements. Municipalities' storm water management program could tie into watershed-wide plans. Performance Rather Than Design Standards for Small Entities Small governmental jurisdictions whose MS4s are covered by this proposed rule would be allowed to choose the best management practices (BMPs) to be implemented and the measurable goals for each of the minimum control measures: 1. Public education and outreach on storm water impacts. 2. Public Involvement/Participation. 3. Illicit discharge detection and elimination. [[Page 1616]] 4. Construction site storm water runoff control for sites of one or more acre. 5. Post-construction storm water management in new development and redevelopment for sites of one or more acre. 6. Pollution prevention/good housekeeping for municipal operations. EPA would provide guidance and would recommend, but not mandate, certain BMPs for some of the minimum control measures listed above. Small governmental jurisdictions would identify the measurable goals for each of the minimum control measures listed above. In their reports to the NPDES permitting authority, the small MS4s would need to evaluate their progress towards achievement of their identified measurable goals. Waivers for Small Entities From Coverage The proposed rule would waiver from coverage Indian Tribes located within an urbanized area and whose population is less than or equal to 1,000 people. The proposed rule would allow the permitting authority to waive from coverage MS4s owned or operated by small governmental jurisdictions located within an urbanized area and serving a population less than or equal to 1,000 people where the permitting authority determines: 1. Implementation of a TMDL that addresses the pollutants of concern, or 2. Implementation of a comprehensive watershed plan for the water body. B. Regulatory Flexibility for Construction Activities Different Compliance, Reporting, or Timetables That Are Responsive to Resources of Small Entities The proposed rule would give the relevant Director of the NPDES permitting program discretion not to require the submittal of a notice of intent (NOI) for coverage under a NPDES general permit, thereby reducing administrative and financial burden. Currently, all construction sites disturbing greater than 5 acres must submit an NOI. Clarifying, Consolidating, or Simplifying Compliance and Reporting Requirements The proposed rule would avoid duplication by allowing the NPDES permitting authority to incorporate by reference State, Tribal, or local programs under a NPDES general permit. Compliance with these programs would be considered compliance with the NPDES general permit. Performance Rather Than Design Standards for Small Entities The operator of a covered construction activity would select and implement the BMPs most appropriate for the construction site based on the operator's storm water pollution prevention plan. Waivers for Small Entities From Coverage Waivers could be granted based on the use of the revised Universal Soil Loss Equation. Universal Soil Loss Equation (USLE) (A) Default/Low-Risk Exemption: When rainfall energy factor (R from Universal Soil Loss Equation) is less than 2 during periods of construction activity, a permit would not be required. (B) Case-by-Case Determination: A permit would not be required for sites having an annual soil loss less than 2 tons/acre/year. The NPDES permitting authority could waive from coverage construction activities disturbing from 1 acre up to 5 acres of land where the permitting authority determines that storm water controls are not needed based on: 1. Implementation of a TMDL that addresses the pollutants of concern, or 2. Implementation of a comprehensive watershed plan for the water body. C. Regulatory Flexibility for Industrial/Commercial Facilities Waivers for Small Entities From Coverage The proposed rule would provide a ``no-exposure'' waiver provision for Phase I industrial/commercial facilities. Those facilities seeking this provision would simply need to complete a self-certification form. Appendix 6 of Preamble--Incorporated Places and Counties Proposed To Be Automatically Designated Under the Storm Water Phase II Proposed Rule (From the 1990 Census of Population and Housing--U.S. Census Bureau) (This List May Change With the Decennial Census) AL Anniston AL Attalla AL Auburn AL Autauga County AL Blue Mountain AL Calhoun County AL Colbert County AL Dale County AL Decatur AL Dothan AL Etowah County AL Flint City AL Florence AL Gadsden AL Glencoe AL Grimes AL Hartselle AL Hobson City AL Hokes Bluff AL Houston County AL Kinsey AL Lauderdale County AL Lee County AL Madison County AL Midland City AL Montgomery County AL Morgan County AL Muscle Shoals AL Napier Field AL Northport AL Opelika AL Oxford AL Phenix City AL Prattville AL Priceville AL Rainbow City AL Russell County AL Sheffield AL Southside AL Sylvan Springs AL Talladega County AL Tuscaloosa AL Tuscaloosa County AL Tuscumbia AL Weaver AZ Apache Junction AZ Chandler AZ El Mirage AZ Gilbert AZ Guadalupe AZ Maricopa County AZ Oro Valley AZ Paradise Valley AZ Peoria AZ Pinal County AZ South Tucson AZ Surprise AZ Tolleson AZ Youngtown AZ Yuma AZ Yuma County AR Alexander AR Barling AR Benton County AR Cammack Village AR Crawford County AR Crittenden County AR Farmington AR Fayetteville AR Fort Smith AR Greenland AR Jacksonville AR Jefferson County AR Johnson AR Marion AR Miller County AR North Little Rock AR Pine Bluff AR Pulaski County AR Saline County AR Shannon Hills AR Sherwood AR Springdale AR Sunset AR Texarkana AR Van Buren AR Washington County AR West Memphis AR White Hall CA Apple Valley CA Belvedere CA Benicia CA Brentwood CA Butte County CA Capitola CA Carmel-by-the-Sea CA Carpinteria CA Ceres CA Chico CA Compton CA Corte Madera CA Cotati CA Davis CA Del Rey Oaks CA Fairfax CA Hesperia CA Imperial County CA Lakewood CA Lancaster CA Larkspur CA Lodi CA Lompoc CA Marin County CA Marina CA Marysville CA Merced CA Merced County CA Mill Valley CA Monterey CA Monterey County CA Morgan Hill [[Page 1617]] CA Napa CA Napa County CA Novato CA Pacific Grove CA Palm Desert CA Palmdale CA Piedmont CA Redding CA Rocklin CA Rohnert Park CA Roseville CA Ross CA San Anselmo CA San Buenaventura (Ventura) CA San Francisco CA San Joaquin County CA San Luis Obispo CA San Luis Obispo County CA San Rafael CA Sand City CA Santa Barbara CA Santa Barbara County CA Santa Cruz CA Santa Cruz County CA Santa Maria CA Sausalito CA Scotts Valley CA Seaside CA Shasta County CA Solano County CA Sonoma County CA Stanislaus County CA Sutter County CA Tiburon CA Tulare County CA Vacaville CA Victorville CA Villa Park CA Visalia CA Watsonville CA West Sacramento CA Yolo County CA Yuba City CA Yuba County CO Adams County CO Arvada CO Boulder CO Boulder County CO Bow Mar CO Broomfield CO Cherry Hills Village CO Columbine Valley CO Commerce City CO Douglas County CO Edgewater CO El Paso County CO Englewood CO Evans CO Federal Heights CO Fort Collins CO Fountain CO Garden City CO Glendale CO Golden CO Grand Junction CO Greeley CO Greenwood Village CO Jefferson County CO La Salle CO Lakeside CO Larimer County CO Littleton CO Longmont CO Manitou Springs CO Mesa County CO Mountain View CO Northglenn CO Pueblo CO Pueblo County CO Sheridan CO Thornton CO Weld County CO Westminster CO Wheat Ridge CT Ansonia CT Bridgeport CT Bristol CT Danbury CT Derby CT Fairfield County CT Groton CT Hartford CT Hartford County CT Litchfield County CT Meriden CT Middlesex County CT Middletown CT Milford CT Naugatuck CT New Britain CT New Haven CT New Haven County CT New London CT New London County CT Norwalk CT Norwich CT Shelton CT Tolland County CT Waterbury CT West Haven CT Windham County CT Woodmont DE Camden DE Dover DE Kent County DE Newark DE Wyoming FL Alachua County FL Baldwin FL Bay County FL Belleair Shore FL Biscayne Park FL Brevard County FL Callaway FL Cape Canaveral FL Cedar Grove FL Charlotte County FL Cinco Bayou FL Clay County FL Cocoa FL Cocoa Beach FL Collier County FL Daytona Beach FL Daytona Beach Shores FL Destin FL Edgewater FL El Portal FL FLorida City FL Fort Pierce FL Fort Walton Beach FL Gainesville FL Gulf Breeze FL Hernando County FL Hillsboro Beach FL Holly Hill FL Indialantic FL Indian Harbour Beach FL Indian River County FL Indian River Shores FL Indian Shores FL Kissimmee FL Lazy Lake FL Lynn Haven FL Malabar FL Marion County FL Martin County FL Mary Esther FL Melbourne FL Melbourne Beach FL Melbourne Village FL Naples FL New Smyrna Beach FL Niceville FL Ocala FL Ocean Breeze Park FL Okaloosa County FL Orange Park FL Ormond Beach FL Osceola County FL Palm Bay FL Panama City FL Parker FL Ponce Inlet FL Port Orange FL Port St. Lucie FL Punta Gorda FL Rockledge FL Santa Rosa County FL Satellite Beach FL Sewall's Point FL Shalimar FL South Daytona FL Springfield FL St. Johns County FL St. Lucie FL St. Lucie County FL Stuart FL Sweetwater FL Titusville FL Valparaiso FL Vero Beach FL Virginia Gardens FL Volusia County FL Walton County FL Weeki Wachee FL West Melbourne FL Windermere GA Albany GA Athens GA Bartow County GA Bibb City GA Brunswick GA Catoosa County GA Centerville GA Chattahoochee County GA Cherokee County GA Chickamauga GA Clarke County GA Columbia County GA Columbus GA Conyers GA Dade County GA Dougherty County GA Douglas County GA Douglasville GA Fayette County GA Floyd County GA Fort Oglethorpe GA Glynn County GA Grovetown GA Henry County GA Houston County GA Jones County GA Lee County GA Lookout Mountain GA Mountain Park GA Oconee County [[Page 1618]] GA Payne GA Rockdale County GA Rome GA Rossville GA Stockbridge GA Vernonburg GA Walker County GA Warner Robins GA Winterville GA Woodstock ID Ada County ID Ammon ID Bannock County ID Bonneville County ID Chubbuck ID Garden City ID IDaho Falls ID Iona ID Pocatello IL Addison IL Algonquin IL Alorton IL Alsip IL Alton IL Antioch IL Arlington Heights IL Aroma Park IL Aurora IL Bannockburn IL Barrington IL Bartlett IL Bartonville IL Batavia IL Beach Park IL Bedford Park IL Belleville IL Bellevue IL Bellwood IL Bensenville IL Berkeley IL Berwyn IL Bethalto IL Bloomingdale IL Bloomington IL Blue Island IL Bolingbrook IL Bourbonnais IL Bradley IL Bridgeview IL Broadview IL Brookfield IL Brooklyn IL Buffalo Grove IL Burbank IL Burnham IL Burr Ridge IL Cahokia IL Calumet City IL Calumet Park IL Carbon Cliff IL Carol Stream IL Carpentersville IL Cary IL Caseyville IL Centreville IL Champaign IL Champaign County IL Cherry Valley IL Chicago IL Chicago Heights IL Chicago Ridge IL Cicero IL Clarendon Hills IL Coal Valley IL Collinsville IL Colona IL Columbia IL Cook County IL Country Club Hills IL Countryside IL Crest Hill IL Crestwood IL Crete IL Creve Coeur IL Crystal Lake IL Darien IL Decatur IL Deer Park IL Deerfield IL Des Plaines IL Dixmoor IL Dolton IL Downers Grove IL Dupo IL DuPage County IL East Alton IL East Dubuque IL East Dundee IL East Hazel Crest IL East Moline IL East Peoria IL East St. Louis IL Edwardsville IL Elgin IL Elk Grove Village IL Elmhurst IL Elmwood Park IL Evanston IL Evergreen Park IL Fairmont City IL Fairview Heights IL Flossmoor IL Ford Heights IL Forest Park IL Forest View IL Forsyth IL Fox Lake IL Fox River Grove IL Frankfort IL Franklin Park IL Geneva IL Gilberts IL Glen Carbon IL Glen Ellyn IL Glencoe IL Glendale Heights IL Glenview IL Glenwood IL Golf IL Grandview IL Granite City IL Grayslake IL Green Oaks IL Green Rock IL Gurnee IL Hainesville IL Hampton IL Hanover Park IL Harristown IL Hartford IL Harvey IL Harwood Heights IL Hawthorn Woods IL Hazel Crest IL Henry County IL Hickory Hills IL Highland Park IL Highwood IL Hillside IL Hinsdale IL Hodgkins IL Hoffman Estates IL Hometown IL Homewood IL Indian Creek IL Indian Head Park IL Inverness IL Itasca IL Jerome IL Jo Daviess County IL Joliet IL Justice IL Kane County IL Kankakee IL Kankakee County IL Kendall County IL Kenilworth IL Kildeer IL La Grange IL La Grange Park IL Lake in the Hills IL Lake Barrington IL Lake Bluff IL Lake County IL Lake Forest IL Lake Villa IL Lake Zurich IL Lakemoor IL Lakewood IL Lansing IL Leland Grove IL Libertyville IL Lincolnshire IL Lincolnwood IL Lindenhurst IL Lisle IL Lockport IL Lombard IL Long Grove IL Loves Park IL Lynwood IL Lyons IL Machesney Park IL Macon County IL Madison IL Madison County IL Markham IL Marquette Heights IL Maryville IL Matteson IL Maywood IL McCook IL McCullom Lake IL McHenry IL McHenry County IL McLean County IL Melrose Park IL Merrionette Park IL Midlothian IL Milan IL Moline IL Monroe County IL Montgomery IL Morton IL Morton Grove IL Mount Prospect IL Mount Zion IL Mundelein IL Naperville IL National City IL New Lenox IL New Millford IL Niles IL Normal IL Norridge IL North Aurora IL North Barrington IL North Chicago [[Page 1619]] IL North Pekin IL North Riverside IL Northbrook IL Northfield IL Northlake IL Norwood IL O'Fallon IL Oak Brook IL Oak Forest IL Oak Grove IL Oak Lawn IL Oak Park IL Oakbrook Terrace IL Oakwood Hills IL Olympia Fields IL Orland Hills IL Orland Park IL Oswego IL Palatine IL Palos Heights IL Palos Hills IL Palos Park IL Park City IL Park Forest IL Park Ridge IL Pekin IL Peoria IL Peoria County IL Peoria Heights IL Phoenix IL Plainfield IL Pontoon Beach IL Posen IL Prospect Heights IL Richton Park IL River Forest IL River Grove IL Riverdale IL Riverside IL Riverwoods IL Robbins IL Rock Island IL Rock Island County IL Rockdale IL Rockton IL Rolling Meadows IL Romeoville IL Roscoe IL Roselle IL Rosemont IL Round Lake IL Round Lake Beach IL Round Lake Heights IL Round Lake Park IL Roxana IL Sangamon County IL Sauget IL Sauk Village IL Savoy IL Schaumburg IL Schiller Park IL Shiloh IL Shorewood IL Silvis IL Skokie IL Sleepy Hollow IL South Beloit IL South Chicago Heights IL South Elgin IL South Holland IL South Roxana IL Southern View IL Springfield IL St. Charles IL St. Clair County IL Steger IL Stickney IL Stone Park IL Streamwood IL Summit IL Sunnyside IL Swansea IL Tazewell County IL Thornton IL Tinley Park IL Tower Lakes IL Troy IL University Park IL Urbana IL Venice IL Vernon Hills IL Villa Park IL Warrenville IL Washington IL Washington Park IL Waukegan IL West Chicago IL West Dundee IL Westchester IL Western Springs IL Westmont IL Wheaton IL Wheeling IL Will County IL Willow Springs IL Willowbrook IL Wilmette IL Winfield IL Winnebago County IL Winnetka IL Winthrop Harbor IL Wood Dale IL Wood River IL Woodridge IL Worth IL Zion IN Allen County IN Anderson IN Beech Grove IN Bloomington IN Boone County IN Carmel IN Castleton IN Chesterfield IN Chesterton IN Clark County IN Clarksville IN Clermont IN Country Club Heights IN Crown Point IN Crows Nest IN Cumberland IN Daleville IN Delaware County IN Dyer IN East Chicago IN Edgewood IN Elkhart IN Elkhart County IN Evansville IN Fishers IN Floyd County IN Gary IN Goshen IN Greenwood IN Griffith IN Hamilton County IN Hammond IN Hancock County IN Hendricks County IN Highland IN Hobart IN Homecroft IN Howard County IN Indian Village IN Jeffersonville IN Johnson County IN Kokomo IN Lafayette IN Lake County IN Lake Station IN Lawrence IN Madison County IN Meridian Hills IN Merrillville IN Mishawaka IN Monroe County IN Muncie IN Munster IN New Albany IN New Chicago IN New Haven IN New Whiteland IN Newburgh IN North Crows Nest IN Ogden Dunes IN Osceola IN Portage IN Porter IN Porter County IN River Forest IN Rocky Ripple IN Roseland IN Schererville IN Seelyville IN Sellersburg IN Selma IN South Bend IN Southport IN Speedway IN Spring Hill IN St. John IN St. Joseph County IN Terre Haute IN Tippecanoe County IN Vanderburgh County IN Vigo County IN Warren Park IN Warrick County IN West Lafayette IN West Terre Haute IN Westfield IN Whiteland IN Whiting IN Williams Creek IN Woodlawn Heights IN Wynnedale IN Yorktown IN Zionsville IA Altoona IA Asbury IA Bettendorf IA Black Hawk County IA Buffalo IA Carter Lake IA Cedar Falls IA Clive IA Coralville IA Council Bluffs IA Dubuque IA Dubuque County IA Elk Run Heights IA Evansdale IA Hiawatha IA Iowa City IA Johnson County IA Johnston IA Le Claire [[Page 1620]] IA Linn County IA Marion IA Norwalk IA Panorama Park IA Pleasant Hill IA Polk County IA Pottawattamie County IA Raymond IA Riverdale IA Robins IA Scott County IA Sergeant Bluff IA Sioux City IA University Heights IA Urbandale IA Warren County IA Waterloo IA West Des Moines IA Windsor Heights KS Bel Aire KS Countryside KS Doniphan County KS Douglas County KS Eastborough KS Elwood KS Fairway KS Haysville KS Johnson County KS Kechi KS Lake Quivira KS Lawrence KS Leawood KS Lenexa KS Merriam KS Mission KS Mission Hills KS Mission Woods KS Olathe KS Park City KS Prairie Village KS Roeland Park KS Sedgwick County KS Shawnee KS Shawnee County KS Westwood KS Westwood Hills KY Alexandria KY Anchorage KY Ashland KY Audubon Park KY Bancroft KY Barbourmeade KY Beechwood Village KY Bellefonte KY Bellemeade KY Bellevue KY Bellewood KY Blue Ridge Manor KY Boone County KY Boyd County KY Briarwood KY Broad Fields KY Broeck Pointe KY Bromley 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Winding Falls KY Windy Hills KY Woodland Hills KY Woodlawn KY Woodlawn Park KY Worthington KY Wurtland LA Alexandria LA Baker LA Ball LA Bossier City LA Bossier Parish LA Broussard LA Caddo Parish LA Calcasieu Parish LA Carencro LA Denham Springs LA East Baton Rouge Parish LA Houma LA Lafayette LA Lafayette Parish LA Lafourche Parish LA Lake Charles LA Livingston Parish LA Monroe LA Ouachita Parish LA Pineville LA Plaquemines Parish LA Port Allen LA Rapides Parish LA Richwood LA Scott LA Slidell LA St. Bernard Parish LA St. Charles Parish LA St. Tammany Parish LA Sulphur LA Terrebonne Parish LA West Baton Rouge Parish [[Page 1621]] LA West Monroe LA Westlake LA Zachary ME Androscoggin County ME Auburn ME Bangor ME Brewer ME Cumberland County ME Lewiston ME Old Town ME Penobscot County ME Portland ME South Portland ME Westbrook ME York County MD Allegany County MD Annapolis MD Bel Air MD Berwyn Heights MD Bladensburg MD Bowie MD Brentwood MD Brookeville MD Capitol Heights MD Cecil County MD Cheverly MD Chevy Chase MD Chevy Chase Section Five MD Chevy Chase Section Three MD Chevy Chase Village MD College Park MD Colmar Manor MD Cottage City MD Cumberland MD District Heights MD Edmonston MD Elkton MD Fairmount Heights MD Forest Heights MD Frederick MD Frostburg MD Funkstown MD Gaithersburg MD Garrett Park MD Glen Echo MD Glenarden MD Greenbelt MD Hagerstown MD Highland Beach MD Hyattsville MD Kensington MD Landover Hills MD Laurel MD Martin's Additions MD Morningside MD Mount Rainier MD New Carrollton MD North Brentwood MD Riverdale MD Rockville MD Seat Pleasant MD Smithsburg MD Somerset MD Takoma Park MD University Park MD Walkersville MD Washington Grove MD Williamsport MA Attleboro MA Barnstable County MA Berkshire County MA Beverly MA Bristol County MA Brockton MA Cambridge MA Chelsea MA Chicopee MA Essex County MA Everett MA Fall River MA Fitchburg MA Gloucester MA Hampden County MA Hampshire County MA Haverhill MA Holyoke MA Lawrence MA Leominster MA Lowell MA Lynn MA Malden MA Marlborough MA Medford MA Melrose MA Middlesex County MA New Bedford MA Newton MA Norfolk County MA Northampton MA Peabody MA Pittsfield MA Plymouth County MA Quincy MA Revere MA Salem MA Somerville MA Springfield MA Suffolk County MA Taunton MA Waltham MA Westfield MA Woburn MA Worcester County MI Allegan County MI Allen Park MI Auburn Hills MI Battle Creek MI Bay City MI Bay County MI Belleville MI Benton Harbor MI Berkley MI Berrien County MI Beverly Hills MI Bingham Farms MI Birmingham MI Bloomfield Hills MI Burton MI Calhoun County MI Cass County MI Center Line MI Clarkston MI Clawson MI Clinton County MI Clio MI Davison MI Dearborn MI Dearborn Heights MI Detroit MI East Detroit MI East Grand Rapids MI East Lansing MI Eaton County MI Ecorse MI Essexville MI Farmington MI Farmington Hills MI Ferndale MI Flat Rock MI Flushing MI Franklin MI Fraser MI Garden City MI Genesee County MI Gibraltar MI Grand Blanc MI Grandville MI Grosse Pointe MI Grosse Pointe Farms MI Grosse Pointe Park MI Grosse Pointe Shores MI Grosse Pointe Woods MI Hamtramck MI Harper Woods MI Hazel Park MI Highland Park MI Holland MI Hudsonville MI Huntington Woods MI Ingham County MI Inkster MI Jackson MI Jackson County MI Kalamazoo MI Kalamazoo County MI Keego Harbor MI Kent County MI Kentwood MI Lake Angelus MI Lansing MI Lathrup Village MI Lincoln Park MI Livonia MI Macomb County MI Madison Heights MI Marysville MI Melvindale MI Monroe County MI Mount Clemens MI Mount Morris MI Muskegon MI Muskegon County MI Muskegon Heights MI New Baltimore MI Niles MI North Muskegon MI Northville MI Norton Shores MI Novi MI Oak Park MI Oakland County MI Orchard Lake Village MI Ottawa County MI Parchment MI Pleasant Ridge MI Plymouth MI Pontiac MI Port Huron MI Portage MI River Rouge MI Riverview MI Rochester MI Rochester Hills MI Rockwood MI Romulus MI Roosevelt Park MI Roseville MI Royal Oak MI Saginaw MI Saginaw County MI Shoreham MI South Rockwood MI Southfield MI Southgate MI Springfield MI St. Clair MI St. Clair County [[Page 1622]] MI St. Clair Shores MI St. Joseph MI Stevensville MI Swartz Creek MI Sylvan Lake MI Taylor MI Trenton MI Troy MI Utica MI Walker MI Walled Lake MI Washtenaw County MI Wayne MI Wayne County MI Westland MI Wixom MI Wolverine Lake MI Woodhaven MI Wyandotte MI Wyoming MI Ypsilanti MI Zeeland MI Zilwaukee MN Andover MN Anoka MN Apple Valley MN Arden Hills MN Benton County MN Birchwood Village MN Blaine MN Bloomington MN Brooklyn Center MN Brooklyn Park MN Burnsville MN Champlin MN Chanhassen MN Circle Pines MN Clay County MN Coon Rapids MN Cottage Grove MN Crystal MN Dayton MN Deephaven MN Dilworth MN Duluth MN Eagan MN East Grand Forks MN Eden Prairie MN Excelsior MN Falcon Heights MN Farmington MN Fridley MN Gem Lake MN Golden Valley MN Greenwood MN Ham Lake MN Hennepin County MN Hermantown MN Hilltop MN Hopkins MN Houston County MN Inver Grove Heights MN La Crescent MN Lake Elmo MN Lakeville MN Landfall MN Lauderdale MN Lexington MN Lilydale MN Lino Lakes MN Little Canada MN Long Lake MN Loretto MN Mahtomedi MN Maple Grove MN Maple Plain MN Maplewood MN Medicine Lake MN Medina MN Mendota MN Mendota Heights MN Minnetonka MN Minnetonka Beach MN Minnetrista MN Moorhead MN Mound MN Mounds View MN New Brighton MN New Hope MN Newport MN North Oaks MN North St. Paul MN Oakdale MN Olmsted County MN Orono MN Osseo MN Plymouth MN Prior Lake MN Proctor MN Ramsey MN Ramsey County MN Robbinsdale MN Rochester MN Rosemount MN Roseville MN Sartell MN Sauk Rapids MN Savage MN Scott County MN Sherburne County MN Shoreview MN Shorewood MN South St. Paul MN Spring Lake Park MN Spring Park MN St. Anthony MN St. Cloud MN St. Louis County MN St. Paul Park MN Stearns County MN Sunfish Lake MN Tonka Bay MN Vadnais Heights MN Victoria MN Waite Park MN WA County MN Wayzata MN West St. Paul MN White Bear Lake MN Willernie MN Woodbury MN Woodland MS Bay St. Louis MS Biloxi MS Brandon MS Clinton MS D'Iberville MS DeSoto County MS Flowood MS Forrest County MS Gautier MS Gulfport MS Hancock County MS Harrison County MS Hattiesburg MS Hinds County MS Horn Lake MS Jackson County MS Lamar County MS Long Beach MS Madison MS Madison County MS Moss Point MS Ocean Springs MS Pascagoula MS Pass Christian MS Pearl MS Petal MS Rankin County MS Richland MS Ridgeland MS Southaven MS Waveland MO Airport Drive MO Andrew County MO Arnold MO Avondale MO Ballwin MO Battlefield MO Bel-Nor MO Bel-Ridge MO Bella Villa MO Bellefontaine Neighbors MO Bellerive MO Belton MO Berkeley MO Beverly Hills MO Birmingham MO Black Jack MO Blue Springs MO Boone County MO Breckenridge Hills MO Brentwood MO Bridgeton MO Buchanan County MO Calverton Park MO Carl Junction MO Carterville MO Cass County MO Charlack MO Chesterfield MO Clarkson Valley MO Claycomo MO Clayton MO Cliff Village MO Columbia MO Cool Valley MO Cottleville MO Country Club MO Country Club Hills MO Country Life Acres MO Crestwood MO Creve Coeur MO Crystal Lake Park MO Dellwood MO Dennis Acres MO Des Peres MO Duquesne MO Edmundson MO Ellisville MO Fenton MO Ferguson MO Flordell Hills MO Florissant MO Frontenac MO Gladstone MO Glen Echo Park MO Glenaire MO Glendale MO Grandview MO Grantwood Village MO Greendale MO Greene County MO Hanley Hills MO Hazelwood MO Hillsdale MO Houston Lake MO Huntleigh [[Page 1623]] MO Iron Gates MO Jackson County MO Jasper County MO Jefferson County MO Jennings MO Joplin MO Kimmswick MO Kinloch MO Kirkwood MO Ladue MO Lake St.Louis MO Lake Tapawingo MO Lake Waukomis MO Lakeshire MO Leawood MO Lee's Summit MO Liberty MO Mac Kenzie MO Manchester MO Maplewood MO Marlborough MO Maryland Heights MO Moline Acres MO Normandy MO North KS City MO Northmoor MO Northwoods MO Norwood Court MO O'Fallon MO Oakland MO Oakland Park MO Oaks MO Oakview MO Oakwood MO Oakwood Park MO Olivette MO Overland MO Pagedale MO Parkdale MO Parkville MO Pasadena Hills MO Pasadena Park MO Pine Lawn MO Platte County MO Platte Woods MO Pleasant Valley MO Randolph MO Raymore MO Raytown MO Redings Mill MO Richmond Heights MO Riverside MO Riverview MO Rock Hill MO Saginaw MO Shoal Creek Drive MO Shrewsbury MO Silver Creek MO St. Ann MO St. Charles MO St. Charles County MO St. George MO St. John MO St. Joseph MO St. Louis MO St. Louis County MO St. Peters MO Sugar Creek MO Sunset Hills MO Sycamore Hills MO Town and Country MO Twin Oaks MO Unity Village MO University City MO Uplands Park MO Valley Park MO Velda Village MO Velda Village Hills MO Vinita Park MO Vinita Terrace MO Warson Woods MO Weatherby Lake MO Webb City MO Webster Groves MO Wellston MO Westwood MO Wilbur Park MO Winchester MO Woodson Terrace MT Billings MT Cascade County MT Great Falls MT Missoula MT Missoula County MT Yellowstone County NE Bellevue NE Boys Town NE Dakota County NE Douglas County NE La Vista NE Lancaster County NE Papillion NE Ralston NE Sarpy County NE South Sioux City NH Dover NH Hillsborough County NH Manchester NH Merrimack County NH Nashua NH Portsmouth NH Rochester NH Rockingham County NH Somersworth NH Strafford County NJ Absecon NJ Allendale NJ Allenhurst NJ Alpha NJ Alpine NJ Asbury Park NJ Atlantic City NJ Atlantic County NJ Atlantic Highlands NJ Audubon NJ Audubon Park NJ Avon-by-the-Sea NJ Barrington NJ Bay Head NJ Bayonne NJ Beachwood NJ Bellmawr NJ Belmar NJ Bergen County NJ Bergenfield NJ Berlin NJ Bernardsville NJ Beverly NJ Bloomingdale NJ Bogota NJ Boonton NJ Bordentown NJ Bound Brook NJ Bradley Beach NJ Brielle NJ Brigantine NJ Brooklawn NJ Buena NJ Burlington NJ Burlington County NJ Butler NJ Camden NJ Camden County NJ Cape May County NJ Carlstadt NJ Carteret NJ Chatham NJ Chesilhurst NJ Clayton NJ Clementon NJ Cliffside Park NJ Clifton NJ Closter NJ Collingswood NJ Cresskill NJ Cumberland County NJ Deal NJ Demarest NJ Dover NJ Dumont NJ Dunellen NJ East Newark NJ East Orange NJ East Rutherford NJ Eatontown NJ Edgewater NJ Elizabeth NJ Elmwood Park NJ Emerson NJ Englewood NJ Englewood Cliffs NJ Englishtown NJ Essex County NJ Fair Haven NJ Fair Lawn NJ Fairview NJ Fanwood NJ Fieldsboro NJ Florham Park NJ Fort Lee NJ Franklin Lakes NJ Freehold NJ Garfield NJ Garwood NJ Gibbsboro NJ Glassboro NJ Glen Rock NJ Gloucester City NJ Gloucester County NJ Guttenberg NJ Hackensack NJ Haddon Heights NJ Haddonfield NJ Haledon NJ Harrington Park NJ Harrison NJ Hasbrouck Heights NJ Haworth NJ Hawthorne NJ Helmetta NJ Hi-Nella NJ Highland Park NJ Highlands NJ Hillsdale NJ Ho-Ho-Kus NJ Hoboken NJ Hopatcong NJ Hudson County NJ Hunterdon County NJ Interlaken NJ Island Heights NJ Jamesburg NJ Jersey City NJ Keansburg NJ Kearny NJ Kenilworth NJ Keyport [[Page 1624]] NJ Kinnelon NJ Lakehurst NJ Laurel Springs NJ Lavallette NJ Lawnside NJ Leonia NJ Lincoln Park NJ Linden NJ Lindenwold NJ Linwood NJ Little Ferry NJ Little Silver NJ Loch Arbour NJ Lodi NJ Long Branch NJ Longport NJ Madison NJ Magnolia NJ Manasquan NJ Mantoloking NJ Manville NJ Margate City NJ Matawan NJ Maywood NJ Medford Lakes NJ Mendham NJ Mercer County NJ Merchantville NJ Metuchen NJ Middlesex NJ Middlesex County NJ Midland Park NJ Millstone NJ Milltown NJ Millville NJ Monmouth Beach NJ Monmouth County NJ Montvale NJ Moonachie NJ Morris County NJ Morris Plains NJ Morristown NJ Mount Arlington NJ Mount Ephraim NJ Mountain Lakes NJ Mountainside NJ National Park NJ Neptune City NJ Netcong NJ New Brunswick NJ New Milford NJ New Providence NJ Newark NJ Newfield NJ North Arlington NJ North Haledon NJ North Plainfield NJ Northfield NJ Northvale NJ Norwood NJ Oakland NJ Oaklyn NJ Ocean City NJ Ocean County NJ Ocean Gate NJ Oceanport NJ Old Tappan NJ Oradell NJ Palisades Park NJ Palmyra NJ Paramus NJ Park Ridge NJ Passaic NJ Passaic County NJ Paterson NJ Paulsboro NJ Pennington NJ Penns Grove NJ Perth Amboy NJ Phillipsburg NJ Pine Beach NJ Pine Hill NJ Pine Valley NJ Pitman NJ Plainfield NJ Pleasantville NJ Point Pleasant NJ Point Pleasant Beach NJ Pompton Lakes NJ Prospect Park NJ Rahway NJ Ramsey NJ Raritan NJ Red Bank NJ Ridgefield NJ Ridgefield Park NJ Ridgewood NJ Ringwood NJ River Edge NJ Riverdale NJ Riverton NJ Rockaway NJ Rockleigh NJ Roseland NJ Roselle NJ Roselle Park NJ Rumson NJ Runnemede NJ Rutherford NJ Saddle River NJ Salem County NJ Sayreville NJ Sea Bright NJ Sea Girt NJ Seaside Heights NJ Seaside Park NJ Secaucus NJ Shrewsbury NJ Somerdale NJ Somers Point NJ Somerset County NJ Somerville NJ South Amboy NJ South Belmar NJ South Bound Brook NJ South Plainfield NJ South River NJ South Toms River NJ Spotswood NJ Spring Lake NJ Spring Lake Heights NJ Stanhope NJ Stratford NJ Summit NJ Sussex County NJ Tavistock NJ Tenafly NJ Teterboro NJ Tinton Falls NJ Totowa NJ Trenton NJ Union Beach NJ Union City NJ Union County NJ Upper Saddle River NJ Ventnor City NJ Victory Gardens NJ Vineland NJ Waldwick NJ Wallington NJ Wanaque NJ Warren County NJ Watchung NJ Wenonah NJ West Long Branch NJ West NY NJ West Paterson NJ Westfield NJ Westville NJ Westwood NJ Wharton NJ Wood-Ridge NJ Woodbury NJ Woodbury Heights NJ Woodcliff Lake NJ Woodlynne NM Bernalillo County NM Corrales NM Dona Ana County NM Las Cruces NM Los Ranchos de Albuquerque NM Mesilla NM Rio Rancho NM Santa Fe NM Santa Fe County NM Sunland Park NY Albany NY Albany County NY Amityville NY Ardsley NY Atlantic Beach NY Babylon NY Baldwinsville NY Baxter Estates NY Bayville NY Beacon NY Belle Terre NY Bellerose NY Bellport NY Binghamton NY Blasdell NY Briarcliff Manor NY Brightwaters NY Bronxville NY Brookville NY Broome County NY Buchanan NY Buffalo NY Camillus NY Cayuga Heights NY Cedarhurst NY Chemung County NY Chestnut Ridge NY Clayville NY Clinton NY Cohoes NY Colonie NY Cornwall on Hudson NY Croton-on-Hudson NY Depew NY Dobbs Ferry NY Dutchess County NY East Hills NY East Rochester NY East Rockaway NY East Syracuse NY East Williston NY Elmira NY Elmira Heights NY Elmsford NY Endicott NY Erie County NY Fairport NY Farmingdale NY Fayetteville NY Fishkill NY Floral Park NY Flower Hill [[Page 1625]] NY Fort Edward NY Freeport NY Garden City NY Glen Cove NY Glens Falls NY Grand View-on-Hudson NY Great Neck NY Great Neck Estates NY Great Neck Plaza NY Green Island NY Hamburg NY Harrison NY Hastings-on-Hudson NY Haverstraw NY Hempstead NY Herkimer County NY Hewlett Bay Park NY Hewlett Harbor NY Hewlett Neck NY Hillburn NY Horseheads NY Hudson Falls NY Huntington Bay NY Irvington NY Island Park NY Islandia NY Ithaca NY Johnson City NY Kenmore NY Kensington NY Kings Point NY Lackawanna NY Lake Grove NY Lake Success NY Lancaster NY Lansing NY Larchmont NY Lattingtown NY Lawrence NY Lewiston NY Lindenhurst NY Liverpool NY Lloyd Harbor NY Long Beach NY Lynbrook NY Malverne NY Mamaroneck NY Manlius NY Manorhaven NY Massapequa Park NY Matinecock NY Menands NY Mill Neck NY Mineola NY Minoa NY Monroe County NY Montebello NY Mount Kisco NY Mount Vernon NY Munsey Park NY Muttontown NY Nassau County NY New Hartford NY New Hempstead NY New Hyde Park NY New Rochelle NY New Square NY NY Mills NY Newburgh NY Niagara County NY Niagara Falls NY North Hills NY North Syracuse NY North Tarrytown NY North Tonawanda NY Northport NY Nyack NY Old Brookville NY Old Westbury NY Oneida County NY Onondaga County NY Orange County NY Orchard Park NY Oriskany NY Ossining NY Oswego County NY Patchogue NY Peekskill NY Pelham NY Pelham Manor NY Phoenix NY Piermont NY Pittsford NY Plandome NY Plandome Heights NY Plandome Manor NY Pleasantville NY Pomona NY Poquott NY Port Chester NY Port Dickinson NY Port Jefferson NY Port WA North NY Poughkeepsie NY Putnam County NY Rensselaer NY Rensselaer County NY Rochester NY Rockland County NY Rockville Centre NY Rome NY Roslyn NY Roslyn Estates NY Roslyn Harbor NY Russell Gardens NY Rye NY Rye Brook NY Saddle Rock NY Sands Point NY Saratoga County NY Scarsdale NY Schenectady NY Schenectady County NY Scotia NY Sea Cliff NY Shoreham NY Sloan NY Sloatsburg NY Solvay NY South Floral Park NY South Glens Falls NY South Nyack NY Spencerport NY Spring Valley NY Stewart Manor NY Suffern NY Suffolk County NY Syracuse NY Tarrytown NY Thomaston NY Tioga County NY Tompkins County NY Tonawanda NY Troy NY Tuckahoe NY Ulster County NY Upper Brookville NY Upper Nyack NY Utica NY Valley Stream NY Village of the Branch NY Wappingers Falls NY Warren County NY Washington County NY Waterford NY Watervliet NY Webster NY Wesley Hills NY West Haverstraw NY Westbury NY Westchester County NY White Plains NY Whitesboro NY Williamsville NY Williston Park NY Woodsburgh NY Yonkers NY Yorkville NC Alamance County NC Apex NC Archdale NC Asheville NC Belmont NC Belville NC Bessemer City NC Biltmore Forest NC Black Mountain NC Brookford NC Brunswick County NC Buncombe County NC Burke County NC Burlington NC Cabarrus County NC Carrboro NC Cary NC Catawba County NC Chapel Hill NC China Grove NC Clemmons NC Concord NC Conover NC Cramerton NC Dallas NC Davidson County NC Durham County NC Edgecombe County NC Elon College NC Fletcher NC Forsyth County NC Garner NC Gaston County NC Gastonia NC Gibsonville NC Goldsboro NC Graham NC Greenville NC Guilford County NC Harnett County NC Haw River NC Hickory NC High Point NC Hildebran NC Hope Mills NC Indian Trail NC Jacksonville NC Jamestown NC Kannapolis NC Landis NC Leland NC Long View NC Lowell NC Matthews NC McAdenville NC Mebane NC Mecklenburg County NC Mint Hill NC Montreat NC Mount Holly [[Page 1626]] NC Nash County NC New Hanover County NC Newton NC Onslow County NC Orange County NC Pineville NC Pitt County NC Randolph County NC Ranlo NC Rocky Mount NC Rowan County NC Rural Hall NC Spring Lake NC Stallings NC Thomasville NC Union County NC Wake County NC Walkertown NC Wayne County NC Weaverville NC Wilmington NC Winterville NC Woodfin NC Wrightsville Beach ND Bismarck ND Burleigh County ND Cass County ND Fargo ND Grand Forks ND Grand Forks County ND Lincoln ND Mandan ND Morton County ND West Fargo OH Addyston OH Allen County OH Amberley OH Amelia OH Amherst OH Arlington Heights OH Auglaize County OH Aurora OH Avon OH Avon Lake OH Barberton OH Bay Village OH Beachwood OH Beavercreek OH Bedford OH Bedford Heights OH Bellaire OH Bellbrook OH Belmont County OH Belpre OH Bentleyville OH Berea OH Bexley OH Blue Ash OH Brady Lake OH Bratenahl OH Brecksville OH Brice OH Bridgeport OH Brilliant OH Broadview Heights OH Brook Park OH Brooklyn OH Brooklyn Heights OH Brookside OH Brunswick OH Butler County OH Campbell OH Canfield OH Canton OH Carlisle OH Centerville OH Chagrin Falls OH Chesapeake OH Cheviot OH Cincinnati OH Clark County OH Clermont County OH Cleveland OH Cleveland Heights OH Cleves OH Coal Grove OH Cridersville OH Cuyahoga County OH Cuyahoga Falls OH Cuyahoga Heights OH Deer Park OH Delaware County OH Doylestown OH Dublin OH East Cleveland OH Eastlake OH Elmwood Place OH Elyria OH Englewood OH Erie County OH Euclid OH Evendale OH Fairborn OH Fairfax OH Fairfield OH Fairfield County OH Fairlawn OH Fairport Harbor OH Fairview Park OH Forest Park OH Fort Shawnee OH Franklin OH Franklin County OH Gahanna OH Garfield Heights OH Geauga County OH Girard OH Glendale OH Glenwillow OH Golf Manor OH Grand River OH Grandview Heights OH Green OH Greene County OH Greenhills OH Grove City OH Groveport OH Hamilton OH Hamilton County OH Hanging Rock OH Harbor View OH Hartville OH Heath OH Highland Heights OH Hilliard OH Hills and Dales OH Holland OH Hubbard OH Huber Heights OH Hudson OH Independence OH Ironton OH Jefferson County OH Kent OH Kettering OH Kirtland OH Lake County OH Lakeline OH Lakemore OH Lakewood OH Lawrence County OH Lexington OH Licking County OH Lima OH Lincoln Heights OH Linndale OH Lockland OH Lorain OH Lorain County OH Louisville OH Loveland OH Lowellville OH Lucas County OH Lyndhurst OH Macedonia OH Madeira OH Mahoning County OH Maineville OH Mansfield OH Maple Heights OH Marble Cliff OH Mariemont OH Martins Ferry OH Mason OH Massillon OH Maumee OH Mayfield OH Mayfield Heights OH McDonald OH Medina County OH Mentor OH Mentor-on-the-Lake OH Meyers Lake OH Miami County OH Miamisburg OH Middleburg Heights OH Middletown OH Milford OH Millbury OH Millville OH Minerva Park OH Mingo Junction OH Mogadore OH Monroe OH Montgomery OH Montgomery County OH Moraine OH Moreland Hills OH Mount Healthy OH Munroe Falls OH New Miami OH New Middletown OH New Rome OH Newark OH Newburgh Heights OH Newtown OH Niles OH North Bend OH North Canton OH North College Hill OH North Olmsted OH North Randall OH North Ridgeville OH North Royalton OH Northfield OH Northwood OH Norton OH Norwood OH Oakwood OH Oakwood OH Obetz OH Olmsted Falls OH Ontario OH Orange OH Oregon OH Ottawa County OH Ottawa Hills OH Painesville [[Page 1627]] OH Parma OH Parma Heights OH Pepper Pike OH Perrysburg OH Poland OH Portage County OH Powell OH Proctorville OH Ravenna OH Reading OH Reminderville OH Reynoldsburg OH Richfield OH Richland County OH Richmond Heights OH Riverlea OH Riverside OH Rocky River OH Rossford OH Seven Hills OH Shadyside OH Shaker Heights OH Sharonville OH Shawnee Hills OH Sheffield OH Sheffield Lake OH Silver Lake OH Silverton OH Solon OH South Amherst OH South Euclid OH South Point OH South Russell OH Springboro OH Springdale OH Springfield OH St. Bernard OH Stark County OH Steubenville OH Stow OH Strongsville OH Struthers OH Sugar Bush Knolls OH Summit County OH Sylvania OH Tallmadge OH Terrace Park OH The Village of Indian Hill OH Timberlake OH Trenton OH Trotwood OH Trumbull County OH Twinsburg OH Union OH University Heights OH Upper Arlington OH Urbancrest OH Valley View OH Valleyview OH Vandalia OH Vermilion OH Wadsworth OH Waite Hill OH Walbridge OH Walton Hills OH Warren OH Warren County OH Warrensville Heights OH Washington County OH Wayne County OH West Carrollton City OH West Milton OH Westerville OH Westlake OH Whitehall OH Wickliffe OH Willoughby OH Willoughby Hills OH Willowick OH Wintersville OH Wood County OH Woodlawn OH Woodmere OH Worthington OH Wyoming OH Youngstown OK Arkoma OK Bethany OK Bixby OK Broken Arrow OK Canadian County OK Catoosa OK Choctaw OK Cleveland County OK Comanche County OK Creek County OK Del City OK Edmond OK Forest Park OK Hall Park OK Harrah OK Jenks OK Jones OK Lake Aluma OK Lawton OK Logan County OK Midwest City OK Moffett OK Moore OK Mustang OK Nichols Hills OK Nicoma Park OK Norman OK Oklahoma County OK Rogers County OK Sand Springs OK Sequoyah County OK Smith Village OK Spencer OK The Village OK Tulsa County OK Valley Brook OK Wagoner County OK Warr Acres OK Woodlawn Park OK Yukon OR Central Point OR Columbia County OR Durham OR Jackson County OR Keizer OR King City OR Lane County OR Marion County OR Maywood Park OR Medford OR Phoenix OR Polk County OR Rainier OR Springfield OR Troutdale OR Wood Village PA Adamsburg PA Alburtis PA Aldan PA Aliquippa PA Allegheny County PA Allenport PA Altoona PA Ambler PA Ambridge PA Archbald PA Arnold PA Ashley PA Aspinwall PA Avalon PA Avoca PA Baden PA Baldwin PA Beaver PA Beaver County PA Beaver Falls PA Bell Acres PA Belle Vernon PA Bellevue PA Ben Avon PA Ben Avon Heights PA Berks County PA Bethel Park PA Bethlehem PA Big Beaver PA Birdsboro PA Blair County PA Blakely PA Blawnox PA Boyertown PA Brackenridge PA Braddock PA Braddock Hills PA Bradfordwoods PA Brentwood PA Bridgeport PA Bridgeville PA Bridgewater PA Bristol PA Brookhaven PA Brownstown PA Brownsville PA Bryn Athyn PA Bucks County PA California PA Cambria County PA Camp Hill PA Canonsburg PA Carbondale PA Carnegie PA Castle Shannon PA Catasauqua PA Centre County PA Chalfant PA Chalfont PA Charleroi PA Chester PA Chester County PA Chester Heights PA Cheswick PA Churchill PA Clairton PA Clarks Green PA Clarks Summit PA Clifton Heights PA Coal Center PA Coatesville PA Collegeville PA Collingdale PA Columbia PA Colwyn PA Conshohocken PA Conway PA Coplay PA Coraopolis PA Courtdale PA Crafton PA Cumberland County PA Daisytown PA Dale PA Dallas [[Page 1628]] PA Dallastown PA Darby PA Dauphin County PA Delaware County PA Delmont PA Dickson City PA Donora PA Dormont PA Dover PA Downingtown PA Doylestown PA Dravosburg PA Duboistown PA Duncansville PA Dunlevy PA Dunmore PA Dupont PA Duquesne PA Duryea PA East Conemaugh PA East Lansdowne PA East McKeesport PA East Petersburg PA East Pittsburgh PA East Rochester PA East Washington PA Easton PA Eastvale PA Economy PA Eddystone PA Edgewood PA Edgeworth PA Edwardsville PA Elco PA Elizabeth PA Ellport PA Ellwood City PA Emmaus PA Emsworth PA Erie PA Erie County PA Etna PA Exeter PA Export PA Fallston PA Farrell PA Fayette City PA Fayette County PA Ferndale PA Finleyville PA Folcroft PA Forest Hills PA Forty Fort PA Fountain Hill PA Fox Chapel PA Franklin PA Franklin County PA Franklin Park PA Freedom PA Freemansburg PA Geistown PA Glassport PA Glendon PA Glenfield PA Glenolden PA Green Tree PA Greensburg PA Hallam PA Harrisburg PA Harveys Lake PA Hatboro PA Hatfield PA Haysville PA Heidelberg PA Hellertown PA Hermitage PA Highspire PA Hollidaysburg PA Homestead PA Homewood PA Houston PA Hughestown PA Hulmeville PA Hummelstown PA Hunker PA Ingram PA Irwin PA Ivyland PA Jacobus PA Jeannette PA Jefferson PA Jenkintown PA Jermyn PA Jessup PA Johnstown PA Kenhorst PA Kingston PA Koppel PA Lackawanna County PA Laflin PA Lancaster PA Lancaster County PA Langhorne PA Langhorne Manor PA Lansdale PA Lansdowne PA Larksville PA Laurel Run PA Laureldale PA Lawrence County PA Lebanon County PA Leesport PA Leetsdale PA Lehigh County PA Lemoyne PA Liberty PA Lincoln PA Lititz PA Loganville PA Lorain PA Lower Burrell PA Luzerne PA Luzerne County PA Lycoming County PA Macungie PA Madison PA Malvern PA Manor PA Marcus Hook PA Marysville PA Mayfield PA McKees Rocks PA McKeesport PA Mechanicsburg PA Media PA Mercer County PA Middletown PA Millbourne PA Millersville PA Millvale PA Modena PA Mohnton PA Monaca PA Monessen PA Monongahela PA Montgomery County PA Montoursville PA Moosic PA Morrisville PA Morton PA Mount Oliver PA Mount Penn PA Mountville PA Munhall PA Municipality of Monroeville PA Municipality of Murrysville PA Nanticoke PA Narberth PA New Brighton PA New Britain PA New Cumberland PA New Eagle PA New Galilee PA New Kensington PA New Stanton PA Newell PA Newtown PA Norristown PA North Belle Vernon PA North Braddock PA North Catasauqua PA North Charleroi PA North Irwin PA North Wales PA North York PA Northampton PA Northampton County PA Norwood PA Oakmont PA Old Forge PA Olyphant PA Osborne PA Paint PA Palmyra PA Parkside PA Patterson Heights PA Paxtang PA Penbrook PA Penn PA Penndel PA Pennsbury Village PA Phoenixville PA Pitcairn PA Pittsburgh PA Pittston PA Pleasant Hills PA Plum PA Plymouth PA Port Vue PA Pottstown PA Pringle PA Prospect Park PA Rankin PA Reading PA Red Lion PA Ridley Park PA Rochester PA Rockledge PA Roscoe PA Rose Valley PA Rosslyn Farms PA Royalton PA Royersford PA Rutledge PA Scalp Level PA Schwenksville PA Scranton PA Sewickley PA Sewickley Heights PA Sewickley Hills PA Sharon PA Sharon Hill PA Sharpsburg PA Sharpsville PA Shillington PA Shiremanstown PA Sinking Spring PA Somerset County [[Page 1629]] PA Souderton PA South Coatesville PA South Greensburg PA South Heights PA South Williamsport PA Southmont PA Southwest Greensburg PA Speers PA Spring City PA Springdale PA St. Lawrence PA State College PA Steelton PA Stockdale PA Sugar Notch PA Swarthmore PA Swissvale PA Swoyersville PA Tarentum PA Taylor PA Telford PA Temple PA Thornburg PA Throop PA Trafford PA Trainer PA Trappe PA Tullytown PA Turtle Creek PA Upland PA Verona PA Versailles PA Wall PA Warrior Run PA Washington PA Washington County PA Wernersville PA Wesleyville PA West Brownsville PA West Chester PA West Conshohocken PA West Easton PA West Elizabeth PA West Fairview PA West Homestead PA West Lawn PA West Mayfield PA West Middlesex PA West Mifflin PA West Newton PA West Pittston PA West Reading PA West View PA West Wyoming PA West York PA Westmont PA Westmoreland County PA Wheatland PA Whitaker PA White Oak PA Wilkes-Barre PA Wilkinsburg PA Williamsport PA Wilmerding PA Wilson PA Windber PA Windsor PA Wormleysburg PA Wrightsville PA Wyoming PA Wyomissing PA Wyomissing Hills PA Yardley PA Yatesville PA Yeadon PA Yoe PA York PA York County PA Youngwood PR Aguada Municipio PR Aguadilla Municipio PR Aguas Buenas Municipio PR Aibonito Municipio PR Anasco Municipio PR Arecibo Municipio PR Bayamon Municipio PR Cabo Rojo Municipio PR Caguas Municipio PR Camuy Municipio PR Canovanas Municipio PR Carolina Municipio PR Catano Municipio PR Cayey Municipio PR Cidra Municipio PR Dorado Municipio PR Guaynabo Municipio PR Gurabo Municipio PR Hatillo Municipio PR Hormigueros Municipio PR Humacao Municipio PR Juncos Municipio PR Las Piedras Municipio PR Loiza Municipio PR Manati Municipio PR Mayaguez Municipio PR Moca Municipio PR Naguabo Municipio PR Naranjito Municipio PR Penuelas Municipio PR Ponce Municipio PR Rio Grande Municipio PR San German Municipio PR San Juan Municipio PR San Lorenzo Municipio PR Toa Alta Municipio PR Toa Baja Municipio PR Trujillo Alto Municipio PR Vega Alta Municipio PR Vega Baja Municipio PR Yabucoa Municipio RI Bristol County RI Central Falls RI Cranston RI East Providence RI Kent County RI Newport RI Newport County RI Pawtucket RI Providence RI Providence County RI Warwick RI Washington County RI Woonsocket SC Aiken SC Aiken County SC Anderson SC Anderson County SC Arcadia Lakes SC Berkeley County SC Burnettown SC Cayce SC Charleston SC Charleston County SC Columbia SC Cowpens SC Darlington County SC Dorchester County SC Florence SC Florence County SC Folly Beach SC Forest Acres SC Fort Mill SC Georgetown County SC Goose Creek SC Hanahan SC Horry County SC Irmo SC Isle of Palms SC Lexington County SC Lincolnville SC Mount Pleasant SC Myrtle Beach SC North Augusta SC North Charleston SC Pickens County SC Pineridge SC Quinby SC Rock Hill SC South Congaree SC Spartanburg SC Spartanburg County SC Springdale SC Sullivan's Island SC Summerville SC Sumter SC Sumter County SC Surfside Beach SC West Columbia SC York County SD Minnehaha County SD North Sioux City SD Pennington County SD Rapid City TN Alcoa TN Anderson County TN Bartlett TN Blount County TN Brentwood TN Bristol TN Carter County TN Church Hill TN Clarksville TN Collegedale TN East Ridge TN Elizabethton TN Farragut TN Germantown TN Hamilton County TN Hawkins County TN Hendersonville TN Jackson TN Johnson City TN Jonesborough TN Kingsport TN Knox County TN Lakesite TN Lookout Mountain TN Loudon County TN Madison County TN Maryville TN Montgomery County TN Mount Carmel TN Mount Juliet TN Red Bank TN Ridgeside TN Rockford TN Shelby County TN Signal Mountain TN Soddy-Daisy TN Sullivan County TN Sumner County TN Washington County TN Wilson County TX Addison TX Alamo TX Alamo Heights [[Page 1630]] TX Allen TX Azle TX Balch Springs TX Balcones Heights TX Bayou Vista TX Baytown TX Bedford TX Bell County TX Bellaire TX Bellmead TX Belton TX Benbrook TX Beverly Hills TX Bexar County TX Blue Mound TX Bowie County TX Brazoria County TX Brazos County TX Brookside Village TX Brownsville TX Bryan TX Buckingham TX Bunker Hill Village TX Cameron County TX Carrollton TX Castle Hills TX Cedar Hill TX Cedar Park TX Cibolo TX Clear Lake Shores TX Clint TX Cockrell Hill TX College Station TX Colleyville TX Collin County TX Combes TX Converse TX Copperas Cove TX Corinth TX Coryell County TX Crowley TX Dallas County TX Dalworthington Gardens TX Deer Park TX Denison TX Denton TX Denton County TX DeSoto TX Dickinson TX Donna TX Double Oak TX Duncanville TX Ector County TX Edgecliff TX Edinburg TX El Lago TX El Paso County TX Euless TX Everman TX Farmers Branch TX Flower Mound TX Forest Hill TX Fort Bend County TX Friendswood TX Galena Park TX Galveston TX Galveston County TX Grand Prairie TX Grapevine TX Grayson County TX Gregg County TX Groves TX Guadalupe County TX Haltom City TX Hardin County TX Harker Heights TX Harlingen TX Hedwig Village TX Hewitt TX Hickory Creek TX Hidalgo County TX Highland Park TX Highland Village TX Hill Country Village TX Hilshire Village TX Hitchcock TX Hollywood Park TX Howe TX Humble TX Hunters Creek Village TX Hurst TX Hutchins TX Impact TX Jacinto City TX Jefferson County TX Jersey Village TX Katy TX Keller TX Kemah TX Kennedale TX Killeen TX Kirby TX La Marque TX La Porte TX Lacy-Lakeview TX Lake Dallas TX Lake Worth TX Lakeside TX Lakeside City TX Lancaster TX League City TX Leander TX Leon Valley TX Lewisville TX Live Oak TX Longview TX Lubbock County TX Lumberton TX McAllen TX McLennan County TX Meadows TX Midland TX Midland County TX Mission TX Missouri City TX Montgomery County TX Morgan's Point TX Nash TX Nassau Bay TX Nederland TX Nolanville TX North Richland Hills TX Northcrest TX Nueces County TX Odessa TX Olmos Park TX Palm Valley TX Palmview TX Pantego TX Pearland TX Pflugerville TX Pharr TX Piney Point Village TX Port Arthur TX Port Neches TX Portland TX Potter County TX Primera TX Randall County TX Richardson TX Richland Hills TX River Oaks TX Robinson TX Rockwall TX Rockwall County TX Rollingwood TX Rose Hill Acres TX Rowlett TX Sachse TX Saginaw TX San Angelo TX San Benito TX San Juan TX San Patricio County TX Sansom Park TX Santa Fe TX Schertz TX Seabrook TX Seagoville TX Selma TX Shavano Park TX Sherman TX Shoreacres TX Smith County TX Socorro TX South Houston TX Southside Place TX Spring Valley TX Stafford TX Sugar Land TX Sunset Valley TX Tarrant County TX Taylor County TX Taylor Lake Village TX Temple TX Terrell Hills TX Texarkana TX Texas City TX Tom Green County TX Travis County TX Tye TX Tyler TX Universal City TX University Park TX Victoria TX Victoria County TX Wake Village TX Watauga TX Webb County TX Webster TX Weslaco TX West Lake Hills TX West University Place TX Westover Hills TX Westworth TX White Oak TX White Settlement TX Wichita County TX Wichita Falls TX Williamson County TX Wilmer TX Windcrest TX Woodway UT American Fork UT Bluffdale UT Bountiful UT Cache County UT Cedar Hills UT Centerville UT Clearfield UT Clinton UT Davis County UT Draper UT Farmington UT Farr West UT Fruit Heights UT Harrisville UT Highland [[Page 1631]] UT Hyde Park UT Kaysville UT Layton UT Lehi UT Lindon UT Logan UT Mapleton UT Midvale UT Millville UT Murray UT North Logan UT North Ogden UT North Salt Lake UT Ogden UT Orem UT Pleasant Grove UT Pleasant View UT Providence UT Provo UT River Heights UT Riverdale UT Riverton UT Roy UT Sandy UT Smithfield UT South Jordan UT South Ogden UT South Salt Lake UT South Weber UT Springville UT Sunset UT Syracuse UT Uintah UT Utah County UT Washington Terrace UT Weber County UT West Bountiful UT West Jordan UT West Point UT West Valley City UT Woods Cross VT Burlington VT Chittenden County VT Essex Junction VT South Burlington VT Winooski VA Albemarle County VA Alexandria VA Amherst County VA Bedford County VA Botetourt County VA Bristol VA Campbell County VA Charlottesville VA Colonial Heights VA Danville VA Dinwiddie County VA Fairfax VA Falls Church VA Fredericksburg VA Gate City VA Gloucester County VA Hanover County VA Herndon VA Hopewell VA James City County VA Loudoun County VA Lynchburg VA Manassas VA Manassas Park VA Occoquan VA Petersburg VA Pittsylvania County VA Poquoson VA Prince George County VA Richmond VA Roanoke VA Roanoke County VA Salem VA Scott County VA Spotsylvania County VA Stafford County VA Suffolk VA Vienna VA Vinton VA Washington County VA Weber City VA Williamsburg VA York County WA Algona WA Auburn WA Beaux Arts Village WA Bellevue WA Bellingham WA Benton County WA Bonney Lake WA Bothell WA Bremerton WA Brier WA Clyde Hill WA Cowlitz County WA Des Moines WA DuPont WA Edmonds WA Everett WA Fife WA Fircrest WA Franklin County WA Gig Harbor WA Hunts Point WA Issaquah WA Kelso WA Kennewick WA Kent WA Kirkland WA Kitsap County WA Lacey WA Lake Forest Park WA Longview WA Lynnwood WA Marysville WA Medina WA Mercer Island WA Mill Creek WA Millwood WA Milton WA Mountlake Terrace WA Mukilteo WA Normandy Park WA Olympia WA Pacific WA Pasco WA Port Orchard WA Puyallup WA Redmond WA Renton WA Richland WA Ruston WA Selah WA Spokane WA Spokane County WA Steilacoom WA Sumner WA Thurston County WA Tukwila WA Tumwater WA Union Gap WA Vancouver WA West Richland WA Whatcom County WA Woodway WA Yakima WA Yakima County WA Yarrow Point WV Bancroft WV Barboursville WV Belle WV Benwood WV Berkeley County WV Bethlehem WV Brooke County WV Cabell County WV Cedar Grove WV Ceredo WV Charleston WV Chesapeake WV Clearview WV Dunbar WV East Bank WV Follansbee WV Glasgow WV Glen Dale WV Hancock County WV Huntington WV Hurricane WV Kanawha County WV Kenova WV Marmet WV Marshall County WV McMechen WV Mineral County WV Moundsville WV Nitro WV North Hills WV Ohio County WV Parkersburg WV Poca WV Putnam County WV Ridgeley WV South Charleston WV St. Albans WV Triadelphia WV Vienna WV Wayne County WV Weirton WV Wheeling WV Wood County WI Allouez WI Altoona WI Appleton WI Ashwaubenon WI Bayside WI Beloit WI Big Bend WI Brookfield WI Brown County WI Brown Deer WI Butler WI Calumet County WI Cedarburg WI Chippewa County WI Chippewa Falls WI Combined Locks WI Cudahy WI Dane County WI De Pere WI Eau Claire WI Eau Claire County WI Elm Grove WI Elmwood Park WI Fitchburg WI Fox Point WI Franklin WI Germantown WI Glendale WI Grafton WI Green Bay WI Greendale [[Page 1632]] WI Greenfield WI Hales Corners WI Holmen WI Howard WI Janesville WI Kaukauna WI Kenosha WI Kenosha County WI Kimberly WI Kohler WI La Crosse WI La Crosse County WI Lannon WI Little Chute WI Maple Bluff WI Marathon County WI McFarland WI Menasha WI Menomonee Falls WI Mequon WI Middleton WI Monona WI Muskego WI Neenah WI New Berlin WI North Bay WI Oak Creek WI Onalaska WI Oshkosh WI Outagamie County WI Ozaukee County WI Pewaukee WI Pleasant Prairie WI Racine WI Racine County WI River Hills WI Rock County WI Rothschild WI Schofield WI Sheboygan WI Sheboygan County WI Sheboygan Falls WI Shorewood WI Shorewood Hills WI South Milwaukee WI St. Francis WI Sturtevant WI Superior WI Superior WI Sussex WI Thiensville WI Washington County WI Waukesha WI Waukesha County WI Wausau WI Wauwatosa WI West Allis WI West Milwaukee WI Whitefish Bay WI Wind Point WI Winnebago County WY Casper WY Cheyenne WY Evansville WY Laramie County WY Mills WY Natrona County Appendix 7 of Preamble--Incorporated Places and Counties Potentially Designated (Outside Urbanized Areas)\1\ Under the Storm Water Phase II Proposed Rule [Proposed to be Examined by the Permitting Authority Under Sec. 123.35(b)(2)] (From the 1990 Census of Population and Housing--U.S. Census Bureau) --------------------------------------------------------------------------- \1\ Listed incorporated places have at least 10,000 population and 1,000 population density. Please note that no counties meet the 10,000/1,000 threshold. --------------------------------------------------------------------------- (This List May Change With the Decennial Census) AL Jacksonville AL Selma AZ Douglas AK Arkadelphia AK Benton AK Blytheville AK Conway AK El Dorado AK Hot Springs AK Magnolia AK Rogers AK Searcy AK Stuttgart CA Arcata CA Arroyo Grande CA Atwater CA Auburn CA Brawley CA Calexico CA Clearlake CA Corcoran CA Delano CA Dinuba CA Dixon CA El Centro CA El Paso De Robles CA Eureka CA Gilroy CA Grover City CA Hanford CA Hollister CA Lemoore CA Los Banos CA Madera CA Manteca CA Oakdale CA Oroville CA Paradise CA Petaluma CA Porterville CA Red Bluff CA Reedley CA Ridgecrest CA Sanger CA Selma CA Tracy CA Tulare CA Turlock CA Ukiah CA Wasco CA Woodland CO Canon City CO Durango CO Lafayette CO Louisville CO Loveland CO Sterling FL De Land FL Eustis FL Key West FL Leesburg FL Palatka FL St. Augustine FL St. Cloud GA Americus GA Carrollton GA Cordele GA Dalton GA Dublin GA Griffin GA Hinesville GA Moultrie GA Newnan GA Statesboro GA Thomasville GA Tifton GA Valdosta GA Waycross ID Caldwell ID Coeur D'alene ID Lewiston ID Moscow ID Nampa ID Rexburg ID Twin Falls IL Belvidere IL Canton IL Carbondale IL Centralia IL Charleston IL Danville IL De Kalb IL Dixon IL Effingham IL Freeport IL Galesburg IL Herrin IL Jacksonville IL Kewanee IL Lincoln IL Macomb IL Marion IL Mattoon IL Morris IL Mount Vernon IL Ottawa IL Pontiac IL Quincy IL Rantoul IL Sterling IL Streator IL Taylorville IL Woodstock IN Bedford IN Columbus IN Connersville IN Crawfordsville IN Frankfort IN Franklin IN Greenfield IN Huntington IN Jasper IN La Porte IN Lebanon IN Logansport IN Madison IN Marion IN Martinsville IN Michigan City IN New Castle IN Noblesville IN Peru IN Plainfield [[Page 1633]] IN Richmond IN Seymour IN Shelbyville IN Valparaiso IN Vincennes IN Wabash IN Warsaw IN Washington IA Ames IA Ankeny IA Boone IA Burlington IA Fort Dodge IA Fort Madison IA Indianola IA Keokuk IA Marshalltown IA Mason City IA Muscatine IA Newton IA Oskaloosa IA Ottumwa IA Spencer KS Arkansas City KS Atchison KS Coffeyville KS Derby KS Dodge City KS El Dorado KS Emporia KS Garden City KS Great Bend KS Hays KS Hutchinson KS Junction City KS Leavenworth KS Liberal KS Manhattan KS Mcpherson KS Newton KS Ottawa KS Parsons KS Pittsburg KS Salina KS Winfield KY Bowling Green KY Danville KY Frankfort KY Georgetown KY Glasgow KY Hopkinsville KY Madisonville KY Middlesborough KY Murray KY Nicholasville KY Paducah KY Radcliff KY Richmond KY Somerset KY Winchester LA Abbeville LA Bastrop LA Bogalusa LA Crowley LA Eunice LA Hammond LA Jennings LA Minden LA Morgan City LA Natchitoches LA New Iberia LA Opelousas LA Ruston LA Thibodaux ME Waterville MD Aberdeen MD Cambridge MD Salisbury MD Westminster MA Newburyport MI Adrian MI Albion MI Alpena MI Big Rapids MI Cadillac MI Escanaba MI Grand Haven MI Marquette MI Midland MI Monroe MI Mount Pleasant MI Owosso MI Sturgis MI Traverse City MN Albert Lea MN Austin MN Bemidji MN Brainerd MN Faribault MN Fergus Falls MN Hastings MN Hutchinson MN Mankato MN Marshall MN New Ulm MN North Mankato MN Northfield MN Owatonna MN Stillwater MN Willmar MN Winona MS Brookhaven MS Canton MS Clarksdale MS Cleveland MS Columbus MS Greenville MS Greenwood MS Grenada MS Indianola MS Laurel MS Mccomb MS Meridian MS Natchez MS Starkville MS Vicksburg MS Yazoo City MO Cape Girardeau MO Carthage MO Excelsior Springs MO Farmington MO Hannibal MO Jefferson City MO Kennett MO Kirksville MO Marshall MO Maryville MO Mexico MO Moberly MO Poplar Bluff MO Rolla MO Sedalia MO Sikeston MO Warrensburg MO Washington MT Bozeman MT Havre MT Helena MT Kalispell NE Beatrice NE Columbus NE Fremont NE Grand Island NE Hastings NE Kearney NE Norfolk NE North Platte NE Scottsbluff NV Elko NJ Bridgeton NJ Princeton Borough NM Alamogordo NM Artesia NM Clovis NM Deming NM Farmington NM Gallup NM Hobbs NM Las Vegas NM Portales NM Roswell NM Silver City NY Amsterdam NY Auburn NY Batavia NY Canandaigua NY Corning NY Cortland NY Dunkirk NY Fredonia NY Fulton NY Geneva NY Gloversville NY Jamestown NY Kingston NY Lockport NY Massena NY Middletown NY Ogdensburg NY Olean NY Oneonta NY Oswego NY Plattsburgh NY Potsdam NY Watertown NC Albemarle NC Asheboro NC Boone NC Eden NC Elizabeth City NC Havelock NC Henderson NC Kernersville NC Kinston NC Laurinburg NC Lenoir NC Lexington NC Lumberton NC Monroe NC New Bern NC Reidsville NC Roanoke Rapids NC Salisbury NC Sanford NC Shelby NC Statesville NC Tarboro NC Wilson ND Dickinson ND Jamestown ND Minot ND Williston OH Alliance [[Page 1634]] OH Ashland OH Ashtabula OH Athens OH Bellefontaine OH Bowling Green OH Bucyrus OH Cambridge OH Chillicothe OH Circleville OH Coshocton OH Defiance OH Delaware OH Dover OH East Liverpool OH Findlay OH Fostoria OH Fremont OH Galion OH Greenville OH Lancaster OH Lebanon OH Marietta OH Marion OH Medina OH Mount Vernon OH New Philadelphia OH Norwalk OH Oxford OH Piqua OH Portsmouth OH Salem OH Sandusky OH Sidney OH Tiffin OH Troy OH Urbana OH Van Wert OH Washington OH Wilmington OH Wooster OH Xenia OH Zanesville OK Ada OK Altus OK Bartlesville OK Chickasha OK Claremore OK Mcalester OK Miami OK Muskogee OK Okmulgee OK Owasso OK Ponca City OK Stillwater OK Tahlequah OK Weatherford OR Albany OR Ashland OR Astoria OR Bend OR City of the Dalles OR Coos Bay OR Corvallis OR Grants Pass OR Hermiston OR Klamath Falls OR La Grande OR Lebanon OR Mcminnville OR Newberg OR Pendleton OR Roseburg OR Woodburn PA Berwick Borough PA Bloomsburg PA Butler PA Carlisle Borough PA Chambersburg Borough PA Ephrata Borough PA Hazleton PA Indiana Borough PA Lebanon PA Meadville PA New Castle PA Oil City PA Pottsville PA Sunbury PA Uniontown PA Warren SC Clemson SC Easley SC Gaffney SC Greenwood SC Newberry SC Orangeburg SD Aberdeen SD Brookings SD Huron SD Mitchell SD Vermillion SD Watertown SD Yankton TN Brownsville TN Cleveland TN Collierville TN Cookeville TN Dyersburg TN Greeneville TN Lawrenceburg TN Mcminnville TN Millington TN Morristown TN Murfreesboro TN Shelbyville TN Springfield TN Union City TX Alice TX Alvin TX Andrews TX Angleton TX Bay City TX Beeville TX Big Spring TX Borger TX Brenham TX Brownwood TX Burkburnett TX Canyon TX Cleburne TX Conroe TX Coppell TX Corsicana TX Del Rio TX Dumas TX Eagle Pass TX El Campo TX Gainesville TX Gatesville TX Georgetown TX Henderson TX Hereford TX Huntsville TX Jacksonville TX Kerrville TX Kingsville TX Lake Jackson TX Lamesa TX Levelland TX Lufkin TX Mercedes TX Mount Pleasant TX Nacogdoches TX New Braunfels TX Palestine TX Pampa TX Pecos TX Plainview TX Port Lavaca TX Robstown TX Rosenberg TX Round Rock TX San Marcos TX Seguin TX Snyder TX Stephenville TX Sweetwater TX Taylor TX The Colony TX Uvalde TX Vernon TX Vidor UT Brigham City UT Cedar City UT Spanish Fork UT Tooele VT Rutland VA Blacksburg VA Christiansburg VA Front Royal VA Harrisonburg VA Leesburg VA Martinsville VA Radford VA Staunton VA Waynesboro VA Winchester WA Aberdeen WA Anacortes WA Centralia WA Ellensburg WA Moses Lake WA Mount Vernon WA Oak Harbor WA Port Angeles WA Pullman WA Sunnyside WA Walla Walla WA Wenatchee WV Beckley WV Bluefield WV Clarksburg WV Fairmont WV Martinsburg WV Morgantown WI Beaver Dam WI Fond du Lac WI Fort Atkinson WI Manitowoc WI Marinette WI Marshfield WI Menomonie WI Monroe WI Oconomowoc WI River Falls WI Stevens Point WI Sun Prairie WI Two Rivers WI Watertown WI West Bend WI Whitewater WI Wisconsin Rapids WY Evanston WY Gillette WY Green River [[Page 1635]] WY Laramie WY Rock Springs WY Sheridan For the reasons set forth in the preamble, chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows: PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM 1. The authority citation for part 122 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. 2. In Sec. 122.26, revise paragraphs (a)(9), (b)(4)(i), (b)(7)(i), (b)(8)(i), (b)(14) introductory text, (b)(14)(xi); redesignate paragraph (b)(15) as paragraph (b)(17) and add new paragraphs (b)(15) and (b)(16); revise paragraph (c) heading, paragraphs (c)(1) introductory text first sentence, (c)(1)(i) introductory text, (c)(1)(i)(C) first sentence, (c)(1)(i)(E) introductory text, (c)(1)(ii) first sentence of introductory text, (e)(1)(ii); add paragraph (e)(1)(iii); revise paragraphs (f)(4), (f)(5), and (g) to read as follows: Sec. 122.26 Storm water discharges (applicable to State NPDES programs, see Sec. 123.25). (a) * * * (9)(i) On and after October 1, 1994, for discharges composed entirely of storm water, that are not otherwise already required by paragraph (a)(1) of this section to obtain a permit, owners or operators shall be required to obtain a NPDES permit if: (A) The discharge is from a small municipal separate storm sewer system required to be regulated pursuant to Sec. 122.32; (B) The discharge is a storm water discharge associated with other activity pursuant to paragraph (b)(15) of this section; (C) The Director determines that storm water controls are needed for the discharge based on: (1) Wasteload allocations that are part of ``total maximum daily loads'' (TMDLs) that address the pollutants of concern; or (2) A comprehensive watershed plan, implemented for the waterbody, that includes the equivalents of TMDLs, and addresses the pollutants of concern; or (D) The Director determines that the discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. (ii) Owners or operators of municipal separate storm sewer systems designated pursuant to paragraphs (a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section, shall seek coverage under an NPDES permit in accordance with Secs. 122.33 through 122.35. Owners or operators of non-municipal sources designated pursuant to paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this section, shall seek coverage under an NPDES permit in accordance with paragraph (c)(1) of this section. (iii) Owners or operators of storm water discharges designated pursuant to paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section, shall apply to the Director for a permit within 180 days of receipt of notice, unless permission for a later date is granted by the Director (see Sec. 124.52(c) of this chapter). * * * * * (b) * * * (4) * * * (i) Located in an incorporated place with a population of 250,000 or more as determined by the 1990 Decennial Census by the Bureau of the Census (appendix F of this part); or * * * * * (7) * * * (i) Located in an incorporated place with a population of 100,000 or more but less than 250,000, as determined by the 1990 Decennial Census by the Bureau of the Census (appendix G of this part); or * * * * * (8) * * * (i) Owned or operated by the United States, a State, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the CWA that discharges to waters of the United States; * * * * * (14) For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process waste waters (as defined at 40 CFR part 401); sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and finished products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water. The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas. * * * * * (xi) Facilities under Standard Industrial Classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, 4221-25; * * * * * (15) Storm water discharges associated with other activity means the discharge from any conveyance used for collecting and conveying storm water that needs to be regulated to protect water quality. For the categories of facilities identified in this paragraph, the term includes the entire facility except areas located at the facility separated from the plant's operational activities. Such separated areas may include office buildings and accompanying parking lots, as long as the drainage from the separated areas is not mixed with storm water drained from the plant's operational activities. The following types of facilities or activities are sources of ``storm water discharges associated with other activity'' for the purposes of this paragraph: (i) Construction activities. (A) Construction activities including clearing, grading, and excavating activities that result in land disturbance of equal to or greater than one acre and less than five acres. Sites disturbing less than one acre are included if they are part of a larger common plan of development or sale with a planned disturbance of equal to or greater than one and less than five acres. The NPDES permitting authority may waive the otherwise applicable requirements for a storm water discharge from construction activities that disturb less than five acres where: (1) The rainfall erosivity factor (``R'' in the Revised Universal Soil Loss Equation) is less than two during the period of construction activity. The owner/operator must certify that construction activity will take place during the period when the rainfall erosivity factor is less than two; [[Page 1636]] (2) On a case-by-case basis the annual soil loss for a site will be less than two tons/acre/year. The owner or operator must certify that the annual soil loss for their site will be less than two tons/acre/ year through the use of the Revised Universal Soil Loss Equation, assuming the constants of no ground cover and no runoff controls in place; or (3) Storm water controls are not needed based on: (i) Wasteload allocations that are part of ``total maximum daily loads'' (TMDLs) that address the pollutants of concern. The owner or operator must certify that the construction activity will take place, and storm water discharges will occur, within an area covered by the TMDLs; or (ii) A comprehensive watershed plan, implemented for the waterbody, that includes the equivalents of TMDLs, and addresses the pollutants of concern. The owner or operator must certify that the construction activity will take place, and storm water discharges will occur, within an area covered by the watershed plan. (B) Any other construction activity designated by the NPDES permitting authority based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to waters of the United States. (ii) Any other discharges, except municipal separate storm sewer systems, designated by the NPDES permitting authority pursuant to paragraph (a)(9) of this section. Exhibit 1 to Sec. 122.26(b)(15).--Summary of Coverage of ``Storm Water Discharges Associated With Other Activity''* Under the NPDES Storm Water Program [*See definition in Sec. 122.26(b)(15)] ------------------------------------------------------------------------ ------------------------------------------------------------------------ Automatic Designation: Required Nationwide Construction activities that result in a Coverage. 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 Sec. 122.26(b)(15)(i)(A)). Potential Designation: Optional Evaluation and (1) Construction activities that result Designation by the in a land disturbance of less than one Permitting Authority. acre based on the potential for adverse impact on water quality or for significant contribution of pollutants. (see Sec. 122.26(b)(15)(i)(B)). (2) Any other non-municipal storm water discharges. (see Sec. 122.26(b)(15)(ii)). Automatic Designation: Required nationwide Construction activities that result in a Coverage. 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 Sec. 122.26(b)(15)(i)(A)). Potential Waiver: Waiver from Requirements Any automatically designated construction as Determined by the activity where the owner/operator Permitting Authority. certifies: (1) A rainfall erosivity factor of less than two, or (2) An annual soil loss of less than two tons/acre/year, or (3) That the activity will occur within an area where controls are not needed based on ``waste load allocations'' that are part of total maximum daily loads (TMDLs), or a comprehensive watershed plan. (see Sec. 122.26(b)(15)(i)(A)). ------------------------------------------------------------------------ (16) Small municipal separate storm sewer system means all municipal separate storm sewer systems that are not designated as ``large'' or ``medium'' municipal separate storm sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this section; or designated under paragraph (a)(1)(v) of this section. * * * * * (c) Application requirements for storm water discharges associated with industrial activity or storm water discharges associated with other activity-- (1) Individual application. Dischargers of storm water associated with industrial or other activity are required to apply for an individual permit, apply for a permit through a group application, or seek coverage under a promulgated storm water general permit. * * * (i) Except as provided in Sec. 122.26(c)(1)(ii) through (c)(1)(iv), the operator of a storm water discharge associated with industrial or other activity subject to this section shall provide: * * * * * (C) A certification that all outfalls that should contain storm water discharges associated with industrial or other activity have been tested or evaluated for the presence of non-storm water discharges which are not covered by a NPDES permit; tests for such non-storm water discharges may include smoke tests, fluorometric dye tests, analysis of accurate schematics, as well as other appropriate tests. * * * * * * * * (E) Quantitative data based on samples collected during storm events and collected in accordance with Sec. 122.21 from all outfalls containing a storm water discharge associated with industrial or other activity for the following parameters: * * * * * (ii) The operator of an existing or new storm water discharge that is associated with industrial activity solely under paragraph (b)(14)(x) of this section or is associated with other activity solely under paragraph (b)(15)(i) of this section, is exempt from the requirements of Sec. 122.21(g) and paragraph (c)(1)(i) of this section. * * * * * * * * (e) * * * (1) * * * (ii) For any storm water discharge associated with industrial activity from a facility that is owned or operated by a municipality with a population of less than 100,000 that is not authorized by a general or individual permit, the permit application must be submitted to the Director by August 7, 2001. (iii) For any storm water discharge associated with other activity identified in paragraph (b)(15) of this section that is not authorized by a general or individual permit, the permit application made under paragraph (c) of this section must be submitted to the Director by {insert date 3 years and 90 days from date of publication of final rule in the Federal Register}. * * * * * (f) * * * [[Page 1637]] (4) Any person may petition the Director for the designation of a large, medium, or small municipal separate sewer system as defined by paragraphs (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section. (5) The Director shall make a final determination on any petition received under this section within 90 days after receiving the petition with the exception of petitions to designate a small municipal separate storm sewer system in which case the Director shall make a final determination on the petition within 180 days after its receipt. (g) Conditional exemption for ``no exposure'' of industrial activities and materials to storm water. Discharges composed entirely of storm water do not require an NPDES permit if the owner or operator of the facility satisfies the conditions of this paragraph concerning ``no exposure.'' For purposes of this section, ``no exposure'' means all industrial materials or activities are protected by a storm resistant shelter so that they are not exposed to rain, snow, snowmelt, or runoff. Industrial materials or activities include, but are not limited to, material handling equipment, industrial machinery, raw materials, intermediate products, by-products, or waste products, however packaged. This exemption does not apply to storm water discharges from facilities identified in paragraphs (b)(14)(x) and (b)(15)(i) of this section and sources individually designated under paragraphs (a)(1)(v), (a)(9)(i)(B),(C)&(D) and (g)(3) of this section. Actions taken to qualify for this provision shall not interfere with the attainment or maintenance of water quality standards, including designated uses. To establish that the facility meets the definition of no exposure described in this paragraph, an owner or operator must submit a written certification to the NPDES permitting authority once every five years. (1) Any owner or operator claiming the no exposure exemption must: (i) Notify the NPDES permitting authority at the beginning of each permit term or prior to commencing discharges during a permit term; (ii) Allow the permitting authority, or the municipality where the facility discharges into a municipal separate storm sewer system, to inspect the facility and allow the permitting authority or the municipality to make such inspection reports publicly available upon request; (iii) Upon request, also submit a copy of the certification to the municipality in which the facility is located; and (iv) Sign and certify the certification in accordance with Sec. 122.22. (2) If there is a change in circumstances which causes exposure of industrial activities or materials to storm water, the owner or operator must comply immediately with all the requirements of the storm water program including applying for and obtaining coverage under an NPDES permit. (3) Even if an owner or operator certifies to no exposure under paragraph (g)(1) of this section, the NPDES permitting authority still retains the authority to require the owner or operator of a facility to apply for an individual or general permit if the permitting authority has determined that the discharge: (i) Is, or may reasonably be, causing or contributing to the violation of a water quality standard; or (ii) Is, or may reasonably be, interfering with the attainment or maintenance of water quality standards, including designated uses. 3. Revise Sec. 122.28(b)(2)(v) to read as follows: Sec. 122.28 General permits (applicable to State NPDES programs, see Sec. 123.25). * * * * * (b) * * * (2) * * * (v) Discharges other than discharges from publicly owned treatment works, combined sewer overflows, municipal separate storm sewer systems, primary industrial facilities, and storm water discharges associated with industrial activity, may, at the discretion of the Director, be authorized to discharge under a general permit without submitting a notice of intent where the Director finds that a notice of intent requirement would be inappropriate. * * * * * 4. Add undesignated centerheadings and Secs. 122.30 through 122.37 to subpart B to read as follows: General Purpose of the CWA Section 402(p)(6) Storm Water Program Sec. 122.30 What is the purpose of the CWA section 402(p)(6) storm water regulations? (a) Under the statutory mandate in section 402(p)(6) of the Clean Water Act, the purpose of this portion of the storm water program is to designate additional sources that need to be regulated to protect water quality and to establish a comprehensive storm water program to regulate these sources. (Since the storm water program is part of the National Pollutant Discharge Elimination System (NPDES) Program, you should also refer to Sec. 122.1 which addresses the broader purpose of the NPDES program.) (b) Storm water runoff continues to harm the nation's waters. Runoff from lands modified by human activities can harm surface water resources in two ways: by changing natural hydrologic patterns and by elevating pollutant concentrations and loadings. Storm water runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen- demanding substances, and floatables. (c) EPA strongly encourages partnerships and the watershed approach as the management framework for efficiently, effectively, and consistently protecting and restoring aquatic ecosystems and protecting public health. Tribal Role for the CWA Section 402(p)(6) Storm Water Program Sec. 122.31 As a Tribe, what is my role under the CWA section 402(p)(6) storm water program? As a Tribe you may: (a) Be authorized to operate the NPDES program including the storm water program, after EPA determines that you are eligible for treatment in the same manner as a State under Secs. 123.31 through 123.34 of this chapter. (If you do not have an authorized NPDES program, EPA generally will implement the program on your reservation as well as other Indian country.); (b) Be classified as an owner or operator of a regulated small municipal separate storm sewer system, as defined in Sec. 122.32, to the extent the population within the urbanized area of the reservation is greater than or equal to 1,000 persons. (Designation of your Tribe as an owner or operator of a small municipal separate storm sewer system for purposes of this part is an approach that is consistent with EPA's 1984 Indian Policy of operating on a government-to-government basis with EPA looking to Tribes as the lead governmental authorities to address environmental issues on their reservations as appropriate. If you operate a separate storm sewer system that meets the definition of a regulated small municipal separate storm sewer system, your reservation would be subject to the requirements under Secs. 122.33 through 122.35. If you are not designated as a regulated small municipal separate storm sewer system, you may ask EPA to designate you as such for the purposes of this part. Being regulated as a small municipal separate storm sewer system and having coverage under an NPDES permit may benefit you by enhancing your ability to establish and enforce certain [[Page 1638]] requirements for facilities that discharge storm water into your separate storm sewer system.); or (c) Be a discharger of storm water associated with industrial or other activity under Secs. 122.26(b)(14) or (b)(15), in which case you must meet the applicable requirements. Within Indian country, the NPDES permitting authority generally would be EPA, unless you are authorized to administer the NPDES program. Municipal Role for the CWA Section 402(p)(6) Storm Water Program Exhibit 1 to Subpart B.--Summary of Coverage of Small Municipal Separate Storm Sewer Systems* Under the NPDES Storm Water Program [*See definition at Sec. 122.26(b)(16)] ------------------------------------------------------------------------ ------------------------------------------------------------------------ Who is Designated/Covered Under This Part? ------------------------------------------------------------------------ Automatic Designation Required Nationwide All owners or operators of small Coverage. municipal separate storm sewer systems (MS4s) located within an ``urbanized area.'' (see Sec. 122.32(a)(1)). Potential Designation: Required Evaluation by All owners or operators of small MS4s the Permitting Authority located outside of an ``urbanized area'' for Coverage. with a population of at least 10,000 and a population density of at least 1,000. (see Secs. 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 Secs. 122.32(a)(2) and 123.35(b)(4)). Potential Designation: Optional Evaluation by Owners and operators of small MS4s the Permitting Authority located outside of an ``urbanized area'' for Coverage. with a population of less than 10,000 or a density of less than 1,000. (see Secs. 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 Owners or operators of small MS4s, Requirements as located within an ``urbanized area,'' Determined by the with a jurisdiction of less than 1,000 Permitting Authority. persons and a system that is not contributing substantially to the pollutant loadings of a physically interconnected MS4 may certify that storm water controls are not needed based on: (1) Waste load allocations that are part of ``total maximum daily loads'' (TMDLs) that address the pollutants of concern; or (2) A comprehensive watershed plan, implemented for the waterbody, that includes the equivalents of TMDLs, and addresses the pollutants of concern. Exemption: Not Defined as a Federal Indian reservations where the Regulated Small MS4. population within the ``urbanized area'' portion of the reservation is less than 1,000 persons. ------------------------------------------------------------------------ Sec. 122.32 As an owner or operator of a small municipal separate storm sewer system, am I regulated under the CWA section 402(p)(6) municipal storm water program? (a) You are a regulated small municipal separate storm sewer system if you are the owner or operator of a small municipal separate storm sewer system, including but not limited to systems owned or operated by local governments, State departments of transportation, and State, Tribal, and Federal facilities; and you meet the following definition. Regulated small municipal separate storm sewer systems are defined as all small municipal separate storm sewer systems that are located in: (1) An incorporated place, county (only the portion located in an urbanized area), or other place under the jurisdiction of a governmental entity, including but not limited to Tribal or Territorial governments, located in an urbanized area as determined by the latest Decennial Census by the Bureau of the Census, except for Federal Indian reservations where the population within the urbanized area of the reservation is under 1,000 persons; (2) An incorporated place, county, or other place under the jurisdiction of a governmental entity other than those described in paragraph (a)(1) of this section that is designated by the NPDES permitting authority, including where the designation is pursuant to Secs. 123.35(b)(2) and (b)(4) of this chapter, or is based upon a petition under Sec. 122.26(f). (b) You may be the subject of a petition, by any person, to the NPDES permitting authority to require an NPDES permit for a discharge which is composed entirely of storm water which contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. Upon a final determination by the NPDES permitting authority, you would be required to comply with Secs. 122.33 through 122.35. (c) If you receive a waiver under Sec. 122.33(b), you may subsequently be designated back into the municipal storm water program by the NPDES permitting authority if circumstances change. (See also Sec. 123.35(b) of this chapter.) Sec. 122.33 If I am an owner or operator of a regulated small municipal separate storm sewer system, must I apply for an NPDES permit? If so, by when do I have to seek coverage under an NPDES permit? If so, who is my NPDES permitting authority? (a) If you are the owner or operator of a regulated small municipal separate storm sewer system under Sec. 122.32, you must seek coverage under a general or individual NPDES permit, unless waived under paragraph (b) of this section, as follows: (1) If you are seeking coverage under a general permit, you must submit a Notice of Intent (NOI). The general permit will explain the steps necessary to attain coverage. (2) If you are seeking coverage under an individual permit, you must submit an individual application to your NPDES permitting authority that includes the information required under Sec. 122.21(f) and the following information: [[Page 1639]] (i) Estimate of square mileage served by your separate storm sewer system, and (ii) Any additional information that your NPDES permitting authority requests. (3) If there is an adjoining municipality or other governmental entity with an issued NPDES storm water permit that is willing to have you participate in its storm water program, you may jointly with that adjoining municipality or other governmental entity seek a permit modification to include your municipality or other governmental entity in the relevant portions of that NPDES permit. If you choose this option you will need to comply with the permit application requirements of Sec. 122.26, in lieu of the requirements of Sec. 122.34. You do not need to comply with the specific application requirements of Sec. 122.26(d)(1)(iii) and (iv) and (d)(2)(iii) (discharge characterization). You may satisfy the requirements in Sec. 122.26 (d)(1)(v) and (d)(2)(iv) (identifying a management plan) by referring to the adjoining municipality's storm water management plan. (In referencing an adjoining municipality's storm water management plan, you should briefly describe how the existing plan will address discharges from your municipal separate storm sewer system or would need to be supplemented in order to adequately address your discharges, explain the role you will play in coordinating storm water activities in your jurisdiction, and detail the resources available to you to accomplish the plan.) (b) The NPDES permitting authority may waive the requirements otherwise applicable to you if you are an owner or operator of a regulated small municipal separate storm sewer system, as defined in Sec. 122.32(a)(1), the jurisdiction served by your system includes a population of less than 1,000 ersons, your system is not contributing substantially to the storm water pollutant loadings of a physically interconnected regulated municipal separate storm sewer system (see Sec. 123.35(b)(4) of this chapter), and you have certified that storm water controls are not needed based on: (1) Wasteload allocations that are part of ``total maximum daily loads'' (TMDLs) that address the pollutants of concern; or (2) A comprehensive watershed plan, implemented for the waterbody, that includes the equivalents of TMDLs, and addresses the pollutants of concern. (c) If you are an owner or operator of a regulated small municipal separate storm sewer system: (1) Designated under Sec. 122.32(a)(1), you must apply for coverage under an NPDES permit, or apply for a modification of an existing NPDES permit under paragraph (a)(3) of this section, by {insert date 3 years and 90 days from date of publication of final rule}. (2) Designated under Sec. 122.32(a)(2), you must apply for coverage under an NPDES permit, or apply for a modification of an existing NPDES permit under paragraph (a)(3) of this section, within 60 days of notice, unless the NPDES permitting authority grants a later date. (d) If you are located in an NPDES authorized State, Tribe, or Territory, then that State, Tribe, or Territory is your NPDES permitting authority. Otherwise, your NPDES permitting authority is the EPA Regional Office. (You should call your EPA Regional Office to find out who your NPDES permitting authority is.) Sec. 122.34 As an owner or operator of a regulated small municipal separate storm sewer system, what will my NPDES municipal storm water permit require? (a) Your NPDES municipal storm water permit will, at a minimum, require you to develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants from your municipal separate storm sewer system to the maximum extent practicable (MEP) and protect water quality. Your storm water management program must include the minimum control measures described in paragraph (b) of this section. For purposes of this section, narrative effluent limitations requiring implementation of best management practices (BMPs), are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements, including reductions of pollutants to the maximum extent practicable, and water quality- based requirements of the Clean Water Act. Implementation of the best management practices consistent with the provisions of the storm water management program required pursuant to this section and the provisions of the permit required pursuant to Sec. 122.33 will constitute compliance with the standard of ``reducing pollutants to the maximum extent practicable.'' Your NPDES permitting authority will specify a time period of up to 5 years from the date of permit issuance for you to develop and implement your program. (b) Minimum control measures. (1) Public education and outreach on storm water impacts. You must implement a public education program to distribute educational materials to the community or conduct equivalent outreach activities about the impacts of storm water discharges on water bodies and the steps that can be taken to reduce storm water pollution. (You may use storm water educational materials provided by your State, Tribe, EPA, or, subject to the approval of the local government, environmental or other public interest or trade organizations. The materials or outreach programs should inform individuals and households about the steps they can take, such as ensuring proper septic system maintenance, limiting the use and runoff of garden chemicals, becoming involved in local stream restoration activities that are coordinated by youth service and conservation corps and other citizen groups, and participating in storm drain stenciling, to reduce storm water pollution. In addition, some of the materials or outreach programs should be directed toward targeted groups of commercial, industrial, and institutional entities likely to have significant storm water impacts. For example, information to restaurants on the impact of grease clogging storm drains and to garages on the impact of oil discharges. You are encouraged to tailor your outreach program to address the viewpoints and concerns of all communities, particularly minority and disadvantaged communities, as well as children.) (2) Public involvement/participation. You must comply with State, Tribal and local public notice requirements. (You should include the public in developing, implementing, and reviewing your storm water management program. The public participation process should make efforts to reach out and engage all economic and ethnic groups. You may consider impanelling a group of citizens to participate in your decision-making process, hold public hearings, or work with volunteers.) (3) Illicit discharge detection and elimination. You must: (i) Develop, if not already completed, a storm sewer system map, or equivalent, showing the location of major pipes, outfalls, and topography. In addition, if data already exist, show areas of concentrated activities likely to be a source of storm water pollution; (ii) To the extent allowable under State or Tribal law, effectively prohibit, through ordinance, order, or similar means, illicit discharges into your storm sewer system and implement appropriate enforcement procedures and actions; [[Page 1640]] (iii) Implement a plan to detect and address illicit discharges, including illegal dumping, to your system; and (iv) Inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste. (Actions may include storm drain stenciling, a program to promote, publicize, and facilitate public reporting of illicit connections or discharges, and distribution of outreach materials.) (4) Construction site storm water runoff control. You must develop, implement, and enforce a program to reduce pollutants in storm water runoff to your municipal separate storm sewer system from construction activities that result in land disturbance of greater than or equal to one acre. You must use an ordinance or other regulatory mechanism that controls erosion and sediment to the maximum extent practicable and allowable under State or Tribal law. Your program must control other waste at the construction site that may adversely impact water quality, such as discarded building materials, concrete truck washout, and sanitary waste. Your program also must include, at a minimum, requirements for construction site owners or operators to implement appropriate BMPs, provisions for pre-construction review of site management plans, procedures for receipt and consideration of information submitted by the public, regular inspections during construction, and penalties to ensure compliance. (See Sec. 122.44(s)) (5) Post-construction storm water management in new development and redevelopment. You must develop, implement, and enforce a program to address storm water runoff from new development and redevelopment projects that result in land disturbance of greater than or equal to one acre and that discharge into your municipal separate storm sewer system. Your program must include a plan to implement site-appropriate and cost-effective structural and non-structural best management practices (BMPs) and ensure adequate long-term operation and maintenance of such BMPs. Your program must ensure that controls are in place that would prevent or minimize water quality impacts. (If the involved parties consider water quality impacts from the beginning stages of projects, new development and potentially redevelopment allow opportunities for water quality sensitive projects. EPA recommends that municipalities establish requirements for the use of cost-effective BMPs that minimize water quality impacts and attempt to maintain pre- development runoff conditions. In other words, post-development conditions should not be different from pre-development conditions in a way that adversely affects water quality. The municipal program should include structural and/or non-structural BMPs. EPA encourages locally- based watershed planning and the use of preventative measures, including non-structural BMPs, which are generally lower in cost than structural BMPs, to minimize water quality impacts. Non-structural BMPs are preventative actions that involve management and source controls. Examples of non-structural BMPs include policies and ordinances that result in protection of natural resources and prevention of runoff. These include requirements to limit growth to identified areas, protect sensitive areas such as wetlands and riparian areas, minimize imperviousness, maintain open space, and minimize disturbance of soils and vegetation. Examples of structural BMPs include storage practices (wet ponds and extended-detention outlet structures), filtration practices (grassed swales, sand filters and filter strips), and infiltration practices (infiltration basins, infiltration trenches, and porous pavement). Storm water technologies are constantly being improved, and EPA recommends that municipal requirements be responsive to these changes.) (6) Pollution prevention/good housekeeping for municipal operations. You must develop and implement a cost-effective operation and maintenance program with the ultimate goal of preventing or reducing pollutant runoff from municipal operations. Using training materials that are available from EPA, your State, or Tribe, or from other organizations whose materials are approved by the local government, your program must include local government employee training to prevent and reduce storm water pollution from government operations, such as park and open space maintenance, fleet maintenance, planning, building oversight, and storm water system maintenance. (EPA recommends that, at a minimum, you consider the following in developing your program: maintenance activities, maintenance schedules, and long- term inspection procedures for structural and other storm water controls to reduce floatables and other pollutants discharged from your separate storm sewers; controls for reducing or eliminating the discharge of pollutants from streets, roads, highways, municipal parking lots, maintenance and storage yards, and waste transfer stations; procedures for properly disposing of waste removed from the separate storm sewer systems and areas listed above (such as dredge spoil, accumulated sediments, floatables, and other debris); and ways to ensure that new flood management projects assess the impacts on water quality and examine existing projects for incorporating additional water quality protection devices or practices. In general, the requirement to develop and implement an operation and maintenance program, including local government employee training, is meant to ensure that municipal activities are performed in the most appropriate way to minimize contamination of storm water discharges, rather than requiring the municipality to undertake new activities.) (c) The NPDES permitting authority may include permit provisions in your NPDES permit that incorporate by reference qualifying local, State or Tribal municipal storm water management program requirements that address one or more of the minimum controls of Sec. 122.34(b). Qualifying local, State or Tribal program requirements must impose, at a minimum, the relevant requirements of paragraph (b) of this section. (d) You must identify and submit to your NPDES permitting authority either in your notice of intent or in your permit application (see Sec. 122.33) the following information: best management practices (BMPs) to be implemented and the measurable goals for each of the storm water minimum control measures at paragraphs (b)(1) through (b)(6) of this section, the month and year in which you will start and aim to complete each of the measures or indicate the frequency of the action, and the person or persons responsible for implementing or coordinating your storm water management program. Measurable goals to satisfy minimum control measures in paragraphs (b)(3) through (b)(6) of this section identified in a notice of intent will not constitute a condition of the permit, unless EPA or your State or Tribe has provided or issued a menu of regionally appropriate and field-tested BMPs that EPA or your State or Tribe believes to be cost-effective. (EPA will provide guidance on developing BMPs and measurable goals and modify, update, and supplement such guidance based on the assessments of the NPDES municipal storm water program and research conducted by (date 13 years from effective date of final rule). (e) You must comply with other applicable NPDES permit requirements, standards and conditions established in the individual or general permit, developed consistent with the [[Page 1641]] provisions of Secs. 122.41 through 122.49, as appropriate. (f) Evaluation and assessment. (1) Evaluation. You must evaluate program compliance, the appropriateness of your identified best management practices, and progress towards achieving your identified measurable goals. (The NPDES permitting authority may determine monitoring requirements for you in accordance with State/Tribal monitoring plans appropriate to your watershed. Participation in a group monitoring program is encouraged.) (2) Record keeping. You must keep records required by the NPDES permit for at least 3 years. You must submit your records to the NPDES permitting authority only when specifically asked to do so. You must make your records, including your storm water management program, available to the public at reasonable times during regular business hours (see Sec. 122.7 for confidentiality provision). (You may assess a reasonable charge for copying. You may require a member of the public to provide advance notice, not to exceed two working days.) (3) Reporting. You must submit annual reports to the NPDES permitting authority for your first permit term. For subsequent permit terms, you must submit reports in year two and four unless the NPDES permitting authority requires more frequent reports. Your report must include: (i) The status of compliance with permit conditions, an assessment of the appropriateness of your identified best management practices and progress towards achieving your identified measurable goals for each of the minimum control measures; (ii) Results of information collected and analyzed, including monitoring data, if any, during the reporting period; (iii) A summary of the storm water activities you plan to undertake during the next reporting cycle; and (iv) A change in any identified measurable goals that apply to the program elements. Sec. 122.35 As an owner or operator of a regulated small municipal separate storm sewer system, what if another governmental or other entity is already implementing a minimum control measure in my jurisdiction? (a) You may rely on another entity to satisfy your NPDES permit obligations to implement a minimum control measure if: the other entity is implementing the control measure; the particular control measure, or component thereof, is at least as stringent as the corresponding NPDES permit requirement; and you have requested, and the other entity has agreed to accept responsibility for implementation of the control measure on your behalf to satisfy your permit obligation. You must note in your Sec. 122.34(f)(3) reports when you are relying on another entity to satisfy your permit obligations. You remain responsible for compliance with your permit obligations if the other entity fails to implement the control measure (or component thereof). Therefore, EPA encourages you to enter into a legally binding agreement with that entity if you want to minimize any uncertainty about compliance with your permit. (b) Where appropriate, the NPDES permitting authority may recognize existing responsibilities among governmental entities for the minimum control measures in your NPDES permit. (For example, a State or Tribe may be responsible for addressing construction site runoff and municipalities may be responsible for the remaining minimum control measures. You are not required to provide notice to the other governmental entity when your NPDES permit recognizes the entity and its existing responsibilities.) Where the permitting authority recognizes an existing responsibility for one or more of the minimum control measures in your permit, your responsibility to include such minimum control measure, or measures, in your storm water management program is waived so long as the other governmental entity implements the measure consistent with the requirements of Sec. 122.34(b). Sec. 122.36 As an owner or operator of a regulated small municipal separate storm sewer system, what happens if I don't comply with the application or permit requirements in Secs. 122.33 through 122.35? NPDES permits are federally enforceable. Violators may be subject to the enforcement actions and penalties described in Clean Water Act sections 309 (b), (c), and (g) and 505, or under applicable State or local law. Compliance with a permit issued pursuant to section 402 of the Clean Water Act would be deemed compliance, for purposes of sections 309 and 505, with sections 301, 302, 306, 307, and 403, except any standard imposed under section 307 for toxic pollutants injurious to human health. Sec. 122.37 Will the municipal storm water program regulations at Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter change in the future? EPA will evaluate the municipal storm water regulations at Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter after {insert date 13 years from date of publication of final rule in the Federal Register} and make any necessary revisions. (EPA will conduct an enhanced research effort and compile a comprehensive evaluation of the NPDES municipal storm water program. EPA strongly recommends that no additional requirements beyond the minimum control measures be imposed on regulated small municipal separate storm sewer systems without the agreement of the owner or operator of the affected municipal separate storm sewer system, except where adequate information exists in approved TMDLs or equivalents of TMDLs to develop more specific measures to protect water quality, or until EPA's comprehensive evaluation is completed. EPA will evaluate the regulations based on data from the NPDES municipal storm water program, from research on receiving water impacts from storm water, and the effectiveness of best management practices (BMPs).) 5. Add Sec. 122.44(s) to read as follows: Sec. 122.44 Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs, see Sec. 123.25) * * * * * (s)(1) For storm water discharges from construction sites identified in Sec. 122.26(b)(15)(i), the Director may include permit provisions that incorporate by reference qualifying State, Tribal, or local sediment and erosion control program requirements. A qualifying State, Tribal, or local sediment and erosion control program is one that meets the requirements of a municipal NPDES separate storm sewer permit or a program otherwise approved by the Director. For the Director to approve such programs, the program must meet the minimum program requirements established under Sec. 122.34(b)(4). (2) For storm water discharges identified in Sec. 122.26(b)(14)(x), the Director may include by reference State, Tribal or local requirements that meet the standard of ``best available technology'' (BAT) as defined, for example, in the storm water general permit. PART 123--STATE PROGRAM REQUIREMENTS 1. The authority citation for part 123 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. 2. Section 123.25 is amended by adding paragraphs (a)(39) through (a)(46) to read as follows: Sec. 123.25 Requirements for permitting. (a) * * * [[Page 1642]] (39) Sec. 122.30 (What is the purpose of the CWA section 402(p)(6) storm water regulations?); (40) Sec. 122.31 (For Indian Tribes only) (As a Tribe, what is my role under the CWA section 402(p)(6) storm water program?) (41) Sec. 122.32 (As an owner or operator of a small municipal separate storm sewer system, am I regulated under the CWA section 402(p)(6) municipal storm water program?); (42) Sec. 122.33 (If I am an owner or operator of a regulated small municipal separate storm sewer system, must I apply for an NPDES permit? If so, by when do I have to seek coverage under an NPDES permit? If so, who is my NPDES permitting authority?); (43) Sec. 122.34 (As an owner or operator of a regulated small municipal separate storm sewer system, what will my NPDES municipal storm water permit require?); (44) Sec. 122.35 (As an owner or operator of a regulated small municipal separate storm sewer system, what if another governmental or other entity is already implementing a minimum control measure in my jurisdiction?); (45) Sec. 122.36 (As an owner or operator of a regulated small municipal separate storm sewer system, what happens if I don't comply with the application or permit requirements in Secs. 122.33 through 122.35?); (46) Sec. 122.37 (Will the municipal storm water program regulations at Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter change in the future?); * * * * * 3. Add an undesignated centerheading and Sec. 123.35 to subpart B to read as follows: NPDES Permitting Authority Role for the CWA section 402(p)(6) Municipal Program Sec. 123.35 As the NPDES Permitting Authority for regulated small municipal separate storm sewer systems, what is my role? (a) You must comply with the requirements for all NPDES permitting authorities under parts 122, 123, 124, and 125 of this chapter. (This section is meant only to supplement those requirements and discuss specific issues related to the small municipal storm water program.) (b) You must develop a process, as well as criteria, to designate incorporated places, counties, or other places under the jurisdiction of a governmental entity, other than those described in Sec. 122.32(a)(1) of this chapter, as regulated small municipal separate storm sewer systems to be covered under the CWA section 402(p)(6) program. This process must include the authority to designate a small municipal separate storm sewer system waived under paragraph (d) of this section if circumstances change. EPA may make designations under this section if a State or Tribe fails to comply with the requirements listed in this paragraph. In making your designations, you must: (1) Develop criteria to evaluate whether a storm water discharge results in or has the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts. (EPA recommends as guidance for determining other significant water quality impacts a balanced consideration of the following designation criteria on a watershed or other local basis: discharge to sensitive waters, high growth or growth potential, high population density, contiguity to an urbanized area, significant contributor of pollutants to waters of the United States, and ineffective control of water quality concerns by other programs.); (2) Apply such criteria, at a minimum, to any incorporated place, county, or other place under the jurisdiction of a governmental entity located outside of an urbanized area that has a population density of at least 1,000 people per square mile and a population of at least 10,000; (3) Designate any incorporated place, county or other place under the jurisdiction of a governmental entity that meets the selected criteria by {insert date three years and 90 days from date of publication of final rule in the FEDERAL REGISTER}. You may have until {insert date five years from date of publication of final rule in the FEDERAL REGISTER} to apply the designation criteria on a watershed basis where there is a comprehensive watershed plan. You may apply these criteria to make additional designations at any time, as appropriate; and (4) Designate any incorporated place, county, or other place under the jurisdiction of a governmental entity that contributes substantially to the storm water pollutant loadings of a physically interconnected municipal separate storm sewer system that is regulated by the NPDES storm water program. (c) You must make a final determination within 180 days from receiving a petition under Sec. 122.32(b) of this chapter (or analogous State or Tribal law). If a State or Tribe fails to do so, EPA may make a determination on the petition. (d) You must issue permits consistent with Secs. 122.32 through 122.35 of this chapter to all regulated small municipal separate storm sewer systems. You may waive the requirements otherwise applicable to regulated small municipal separate storm sewer systems, as defined in Sec. 122.32(a)(1) of this chapter, if the jurisdiction of the regulated small municipal separate storm sewer system includes a population of less than 1,000 persons, its discharges are not contributing substantially to the storm water pollutant loadings of a physically interconnected regulated municipal separate storm sewer system (see paragraph (b)(4) of this section), and the owner or operator of the regulated small municipal separate storm sewer system has certified that storm water controls are not needed based on: (1) Wasteload allocations that are part of ``total maximum daily loads'' (TMDLs) that address the pollutants of concern; or (2) A comprehensive watershed plan, implemented for the waterbody, that includes the equivalents of TMDLs, and addresses the pollutants of concern. (e) You must specify a time period of up to 5 years from the date of permit issuance for owners or operators of small municipal separate storm sewer systems to fully develop and implement their storm water program. (f) You must include the requirements in Sec. 122.34 of this chapter including as modified in accordance with Secs. 122.33(a)(3), 122.34(c), or 122.35(b) of this chapter, in any permit issued for regulated small municipal separate storm sewer systems. (You may include permit provisions in a regulated small municipal separate storm sewer system NPDES permit that incorporates by reference qualifying local, State or Tribal municipal storm water management program requirements that address one or more of the minimum controls of Sec. 122.34(b) of this chapter (see Sec. 122.34(c) of this chapter). Qualifying local, State or Tribal program requirements must impose, at a minimum, the relevant requirements of Sec. 122.34(b) of this chapter.) (g) If you plan to issue a general permit to authorize storm water discharges from small municipal separate storm sewer systems, you must provide or issue by {insert 2 years from date of publication of final rule in the Federal Register} a menu of regionally appropriate and field-tested BMPs that you believe to be cost-effective from which regulated small municipal separate storm sewer systems can select. Failure to issue the menu of BMPs would not affect the legal status of the general permit. If a State or Tribe fails [[Page 1643]] to provide or issue the menu, EPA may do so. (h) You must incorporate additional measures necessary to ensure effective implementation of your State storm water program for regulated small municipal separate storm sewer systems. (EPA recommends consideration of the following: (1) You are encouraged to use a general permit for regulated small municipal separate storm sewer systems; (2) To the extent that there is a dedicated funding source, you should play an active role in providing financial assistance to owners and operators of regulated small municipal separate storm sewer systems; (3) You should support local programs by providing technical and programmatic assistance, conducting research projects, performing watershed monitoring, and providing adequate legal authority at the local level; (4) You are encouraged to coordinate and utilize the data collected under several programs including water quality management programs, TMDL programs, and water quality monitoring programs; (5) Where appropriate, you may recognize existing responsibilities among governmental entities for the control measures in an NPDES small municipal storm water permit (see Sec. 122.35(b) of this chapter); and (6) You are encouraged to use a brief (e.g., two page) reporting format to facilitate compiling and analyzing data from submitted reports under Sec. 122.34(f)(3) of this chapter. EPA will develop a model form for this purpose.) [FR Doc. 98-180 Filed 1-8-98; 8:45 am] BILLING CODE 6560-50-P