[Federal Register Volume 78, Number 29 (Tuesday, February 12, 2013)]
[Pages 9908-9910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03055]



[FRL-13-006 and 9779-7 ]

Notice of Availability of the Draft Issuance of the Small 
Municipal Separate Storm Sewer System NPDES General Permit--New 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability of Draft NPDES General Permits.


SUMMARY: The Director of the Office of Ecosystem Protection, 
Environmental Protection Agency-Region 1 (EPA), is issuing this Notice 
of Availability of a draft National Pollutant Discharge Elimination 
System (NPDES) general permit for discharges from small Municipal 
Separate Storm Sewer Systems (MS4s) to certain waters of the State of 
New Hampshire. The draft NPDES general permit establishes Notice of 
Intent (NOI) requirements, prohibitions, and management practices for 
stormwater discharges from small MS4s. A prior Notice of Availability 
of a draft general permit was issued by EPA in December 2008. EPA has 
substantially modified the draft general permit and is issuing a new 
draft general permit pursuant to 40 CFR 124.6.

DATES: Comments must be received on or before April 15, 2013. The 
general permit shall be effective on the date specified in the Federal 
Register publication of the Notice of Availability of the final general 
permit. The final general permit will expire five years from the 
effective date.
    Public Hearing Information: EPA will hold a public hearing in 
accordance with 40 CFR 124.12 and will provide interested parties with 
the opportunity to provide written and/or oral comments for the 
official draft permit record. The public hearing will be held March 14, 
2013 from 2:00pm to 5:00pm at the following location: NH Department of 
Environmental Services Pease Field Office--Pease International 
Tradeport--222 International Drive, Suite 175--Portsmouth, New 
Hampshire 03801.

ADDRESSES: Submit comments by one of the following methods:
     Email: Tedder.Newton@epa.gov
     Mail: Newton Tedder, US EPA--Region 1, 5 Post Office 
Square--Suite 100, Mail Code--OEP06-4, Boston, MA 02109-3912.
    No facsimiles (faxes) will be accepted.
    The draft permit is based on an administrative record available for 
public review at EPA-Region 1, Office of Ecosystem Protection, 5 Post 
Office Square--Suite 100, Boston, Massachusetts 02109-3912. A 
reasonable fee may be charged for copying requests. The fact sheet for 
the draft permit sets forth principal facts and the significant 
factual, legal, methodological and policy questions considered in the 
development of the draft permit and is available upon request. A brief 
summary is provided as SUPPLEMENTARY INFORMATION below.

FOR FURTHER INFORMATION CONTACT: Additional information concerning the 
draft permit may be obtained between the hours of 9:00 a.m. and 5:00 
p.m. Monday through Friday excluding legal holidays from: Newton 
Tedder, Office of Ecosystem Protection, Environmental Protection 
Agency, 5 Post Office Square--Suite 100, Boston, MA 02109-3912; 
telephone: 617-918-1038; email: Tedder.Newton@epa.gov


Background of Proposed Permit

    EPA is proposing to reissue three draft NPDES general permits for 
the discharge of stormwater from small MS4s to certain waters within 
the State of New Hampshire. The three permits are:

NHR041000--Traditional cities and towns
NHR042000--Non-traditional state, federal, county and other publicly 
owned systems
NHR043000--Non-traditional transportation systems
    While these are technically distinct permits, for convenience we 
have grouped them together in a single document and have provided a 
single fact sheet for all three of them, and this document refers to 
the draft general ``permit'' in the singular. The draft general permit, 
appendices, and fact sheet are available at: http://www.epa.gov/region1/npdes/stormwater.
    The conditions in the draft permit are established pursuant to 
Clean Water Act (CWA) section 402(p)(3)(iii) to ensure that pollutant 
discharges from small MS4s are reduced to the Maximum Extent 
Practicable (MEP), protect water quality, and satisfy the appropriate 
requirements of the CWA. The regulations at 40 CFR 122.26(b)(16) define 
a small municipal separate storm sewer system as ``all separate storm 
sewers that are:
    (1) 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, stormwater, 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.
    (2) Not defined as `large' or `medium' municipal separate storm 
sewer systems pursuant to paragraphs (b)(4) or (b)(7) or designated 
under paragraph (a)(1)(v) of this section [40 CFR 122.26].
    (3) This term includes systems similar to separate storm sewer 
systems in municipalities such as systems at military bases, large 
hospital or prison complexes, and highways or other thoroughfares. The 
term does not include separate storm sewers in very discrete areas, 
such as individual buildings.''
    The draft general permit sets forth the requirements for the small 
MS4 to ``reduce the discharge of pollutants to the maximum extent 
practicable, including management practices, control techniques, and 
system, design

[[Page 9909]]

and engineering methods'' (See section 402(p)(3)(B)(iii) of the CWA). 
MEP is the statutory standard that establishes the level of pollutant 
reductions that MS4 operators must achieve. EPA believes that 
implementation of best management practices (BMPs) designed to control 
storm water runoff from the MS4 is generally the most appropriate 
approach for reducing pollutants to satisfy the MEP standard. Pursuant 
to 40 CFR 122.44(k), the draft permit contains BMPs, including 
development and implementation of a comprehensive stormwater management 
program (SWMP) as the mechanism to achieve the required pollutant 
    Section 402(p)(3)(B)(iii) of CWA also authorizes EPA to include in 
an MS4 permit ``such other provisions as [EPA] determine[s] appropriate 
for control of [hellip] pollutants.'' This provision forms a basis for 
imposing water quality-based effluent limitations (WQBELs), consistent 
with the authority in Section 301(b)(1)(C) of the CWA. See Defenders of 
Wildlife v. Browner, 191 F.3d 1159, 1166-67 (9th Cir. 1999); 64 FR 
68722, 68753, 68788 (Dec. 8, 1999). Accordingly, the draft permit 
contains the water quality-based effluent limitations, expressed in 
terms of BMPs, which EPA has determined are necessary and appropriate 
under the CWA.
    EPA issued a final general permit to address stormwater discharges 
from small MS4s on May 1, 2003. The 2003 general permit required small 
MS4s to develop and implement a SWMP designed to control pollutants to 
the maximum extent practicable and protect water quality. This draft 
permit builds on the requirements of the previous general permit.
    EPA views the MEP standard in the CWA as an iterative process. MEP 
should continually adapt to current conditions and BMP effectiveness. 
Compliance with the requirements of this general permit will meet the 
MEP standard. The iterative process of MEP consists of a municipality 
developing a program consistent with specific permit requirements, 
implementing the program, evaluating the effectiveness of the BMPs 
included as part of the program, then revising those parts of the 
program that are not effective at controlling pollutants, then 
implementing the revisions, and evaluating again. The changes contained 
in the draft general permit reflect the iterative process of MEP. 
Accordingly, the draft general permit contains more specific tasks and 
details than the 2003 general permit.
    EPA initially proposed a draft permit in December 2008. Based on 
comments and information gathered while developing responses, EPA has 
modified the initial draft general permit and is issuing a new draft 
permit pursuant to 40 CFR 124.6. The changes to the draft general 
permit include, but are not limited to: provisions addressing 
discharges to impaired waters without a Total Maximum Daily Load, 
including requirements related to discharges to the Great Bay watershed 
and chlorides-impaired waters; provisions related to Total Maximum 
Daily Loads that have been approved since December 2008; illicit 
discharge detection elimination and monitoring provisions. The draft 
general permit has also been revised to provide for coverage to MS4s 
that became subject to NPDES permit requirements with the issuance of 
updated urbanized area delineations based on the results of the 2010 
Census. The 2008 draft general permit also addressed certain areas 
outside of New Hampshire. This revised draft general permit applies 
only to New Hampshire
    EPA is specifically seeking public comment on the specific permit 
Parts listed above, but will accept comment on all permit provisions. 
Please note that the new Draft Permit completely supersedes the 2008 
draft permit, and EPA is providing an entirely new comment period under 
40 CFR 124.10. Consequently, all persons who believe any condition of 
the new Draft Permit is inappropriate must raise all reasonably 
ascertainable issues and submit all reasonably available arguments 
supporting their position during this public comment period, which 
includes the public hearing.

Summary of Permit Conditions

Obtaining Authorization

    In order for a small MS4 to obtain authorization to discharge, it 
must submit a complete and accurate NOI containing the information in 
Appendix E of the draft general permit. The NOI must be submitted 
within 90 days of the effective date of the final permit. The effective 
date of the final permit will be specified in the Federal Register 
publication of the Notice of Availability of the final permit. A small 
MS4 must meet the eligibility requirements of the general permit found 
in Part 1.2 and Part 1.9 prior to submission of its NOI. A small MS4 
will be authorized to discharge under the permit upon receipt of 
written notice from EPA following a public notice of the submitted NOI. 
EPA will authorize the discharge, request additional information, or 
require the small MS4 to apply for an alternative permit or an 
individual permit.

Water Quality Based Effluent Limitations

    The draft permit includes provisions to ensure that discharges do 
not cause or contribute to exceedances of water quality standards. The 
provisions in Parts 2.1 and 2.2 of the general permit constitute the 
water quality-based effluent limitations of the permit. The purpose of 
these parts of the permit is to establish the board inclusion of water 
quality-based effluent limitations for those discharges requiring 
additional controls in order to achieve water quality standards and 
other water quality related objectives, consistent with 40 CFR 
122.44(d). The non-numeric effluent limitation requirements of this 
permit are expressed in the form of control measures and BMPs (see Part 
2.3 of the general permit).

Non-Numeric Effluent Limitations

    When EPA has not promulgated effluent limitations for a category of 
discharges, or if an operator is discharging a pollutant not covered by 
an effluent limitation guideline, effluent limitations may be based on 
the best professional judgment (BPJ) of the agency or permit writer. 
The BPJ limits in the general permit are in the form of non-numeric 
control measures, commonly referred to as best management practices 
(BMPs). EPA has interpreted the CWA to allow BMPs to take the place of 
numeric effluent limitations under certain circumstances. 40 CFR 
122.44(k) provides that permits may include BMPs to control or abate 
the discharge of pollutants when: ``(1) [a]uthorized under section 
304(e) of the CWA for the control of toxic pollutants and hazardous 
substances form ancillary industrial activities; (2) [a]uthorized under 
section 402(p) of the CWA for the control of stormwater discharges; (3) 
[n]umeric effluent limitations are infeasible; or (4) [t]he practices 
are reasonable to achieve effluent limitations and standards or to 
carry out the purposes and intent of the CWA.'' The permit regulates 
stormwater discharges using BMPs. Due to the variability associated 
with stormwater, EPA believes the use of BMPs is the most appropriate 
method to regulate discharges of stormwater from municipal systems in 
accordance with the above referenced regulation.
    The small MS4s are required to implement a SWMP that includes the 
following control measures: public education and outreach; public 
participation; illicit discharge detection and elimination; 
construction stormwater management; stormwater

[[Page 9910]]

management in new development and redevelopment; and good housekeeping 
in municipal operations. Implementation of the SWMP involves the 
identification of BMPs and measurable goals for BMPs. The draft permit 
identifies an objective for each control measure.
    EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. The public comment process and the 
public hearing will be conducted in accordance with 40 CFR 124, EPA's 
Procedures for Decisionmaking. EPA will consider and respond to all 
significant comments before taking final action. All persons, including 
applicants, who believe any condition of the draft permit is 
inappropriate must raise all reasonably ascertainable issues and submit 
all reasonably available arguments supporting their position by the 
close of the public comment period, either by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this Federal Register, or by submitting written or oral 
comments at the public hearing. Any supporting materials which are 
submitted shall be included in full and may not be incorporated by 
reference, unless they are already part of the administrative record in 
this proceeding, or consist of State or Federal statutes and 
regulations, EPA documents of general applicability, or other generally 
available reference materials.

Other Legal Requirements

A. Endangered Species Act
    The provisions related to the ESA have not been changed from those 
in the 2008 draft permit. However, the Atlantic Sturgeon (Acipenser 
oxyrinchus) has been added to the list of species of concern for this 
draft permit. EPA requested concurrence from the appropriate Federal 
services (U.S. Fish and Wildlife Service and National Marine Fisheries 
Service) in connection with the 2008 draft and has renewed this request 
for the new Draft Permit.
B. Executive Order 12866
    EPA has determined that this general permit is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.
C. Paperwork Reduction Act
    The information collection requirements of this permit were 
previously approved by the Office of Management and Budget (OMB) under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
and assigned OMB control number 2040-0004.
D. Regulatory Flexibility Act
    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
requires that EPA prepare a regulatory flexibility analysis for rules 
subject to the requirements of 5 U.S.C. 553(b) that have a significant 
impact on a substantial number of small entities. However, general 
NPDES permits are not ``rules'' subject to the requirements of 5 U.S.C. 
553(b) and are therefore not subject to the RFA.
E. Unfunded Mandates Reform Act
    Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 
104-4, generally requires Federal agencies to assess the effects of 
their ``regulatory actions'' (defined to be the same as ``rules'' 
subject to the RFA) on tribal, state, and local governments and the 
private sector. However, general NPDES permits are not ``rules'' 
subject to the requirements of 5 U.S.C. 553(b) and are therefore not 
subject to the RFA or the UMRA.

    Authority: This action is being taken under the Clean Water Act, 
33 U.S.C. 1251 et seq.

    Dated: February 5, 2013.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2013-03055 Filed 2-11-13; 8:45 am]