[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)]
[Rules and Regulations]
[Pages 89320-89352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28426]



[[Page 89319]]

Vol. 81

Friday,

No. 237

December 9, 2016

Part IV





 Environmental Protection Agency





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 40 CFR Parts 122





 National Pollutant Discharge Elimination System (NPDES) Municipal 
Separate Storm Sewer System General Permit Remand Rule; Final Rule

Federal Register / Vol. 81 , No. 237 / Friday, December 9, 2016 / 
Rules and Regulations

[[Page 89320]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2015-0671; FRL-9955-11-OW]
RIN 2040-AF57


National Pollutant Discharge Elimination System (NPDES) Municipal 
Separate Storm Sewer System General Permit Remand Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is revising the 
regulations governing regulated small municipal separate storm sewer 
system (MS4) permits to respond to a remand from the United States 
Court of Appeals for the Ninth Circuit in Environmental Defense Center, 
et al. v. EPA, 344 F.3d 832 (9th Cir. 2003). In that decision, the 
court determined that the regulations for providing coverage under 
small MS4 general permits did not provide for adequate public notice 
and opportunity to request a hearing. Additionally, the court found 
that EPA failed to require permitting authority review of the best 
management practices (BMPs) to be used at a particular MS4 to ensure 
that the small MS4 permittee reduces pollutants in the discharge from 
their systems to the ``maximum extent practicable'' (MEP), the standard 
established by the Clean Water Act (CWA) for such permits. The final 
rule establishes two alternative approaches a permitting authority can 
use to issue National Pollutant Discharge Elimination (NPDES) general 
permits for small MS4s and meet the requirements of the court remand. 
The first option is to establish all necessary permit terms and 
conditions to require the MS4 operator to reduce the discharge of 
pollutants from its MS4 to the MEP, to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act (``MS4 permit standard'') upfront in one comprehensive permit. The 
second option allows the permitting authority to establish the 
necessary permit terms and conditions in two steps: A first step to 
issue a base general permit that contains terms and conditions 
applicable to all small MS4s covered by the permit and a second step to 
establish necessary permit terms and conditions for individual MS4s 
that are not in the base general permit. Public notice and comment and 
opportunity to request a hearing would be necessary for both steps of 
this two-step general permit. This final rule does not establish any 
new substantive requirements for small MS4 permits.

DATES: This final rule is effective on January 9, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2015-0671. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available 
electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Office of Wastewater 
Management, Water Permits Division (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone 
number: (202) 564-0721; email address: [email protected]. Refer also 
to EPA's Web site for further information related to the final rule at 
https://www.epa.gov/npdes/stormwater-rules-and-notices#proposed.

SUPPLEMENTARY INFORMATION: The Federal Register published EPA's 
proposed rule on January 6, 2016 (81 FR 415).

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
    D. What are the incremental costs of this action?
II. Background
    A. Statutory and Regulatory Overview
    B. MS4 Permitting Requirements
    C. Judicial Review of the Phase II Rule and Partial Remand
III. Summary of the Proposed Rule and Comments Received
    A. Scope of the Proposed Rule
    B. Description of Options Proposed
    C. General Summary of Comments Received
IV. Summary of the Final Rule
    A. Selection of the ``Permitting Authority Choice'' Approach
    B. Description of the Two Permitting Alternatives Under the 
Permitting Authority Choice Approach
    C. Summary of Regulatory Changes To Adopt the Permitting 
Authority Choice Approach
    D. Commonalities Among the Two Types of General Permits
    E. Role of the NOI Under the Permitting Authority Choice 
Approach
    F. Permitting Authority Flexibility To Choose Most Suitable 
Approach
    G. Why EPA Did Not Choose Proposed Option 1 or 2 as Stand-Alone 
Options
V. How the Two General Permit Options Work
    A. Comprehensive General Permit Approach
    B. Two-Step General Permit Approach
    C. Permittee Publication of Public Notice
VI. Requirements for Permit Terms and Conditions
    A. Permitting Authority as the Ultimate Decision-Maker
    B. ``Clear, Specific, and Measurable'' Permit Requirements
    C. Narrative, Numeric, and Other Forms of Permit Requirements
    D. Considerations in Developing Requirements for Successive 
Permits
    E. Relationship Between the Storm Water Management Program 
Document (SWMP) and Required Permit Terms and Conditions
    F. Explaining How the Permit Terms and Conditions Meet the MS4 
Permit Standard
    G. Minimum Federal Permit Requirements
    H. Comments Beyond the Scope of This Rulemaking
VII. Revisions to Other Parts of Sec.  122.34
    A. Compliance Timeline for New MS4 Permittees
    B. Revisions to Evaluation and Assessment Provisions
    C. Establishing Water Quality-Based Requirements
    D. Establishing Water Quality-Based Terms and Conditions Under 
the Two Types of General Permits
    E. Restructuring, Consolidating, Conforming, and Other Editorial 
Revisions
VIII. Final Rule Implementation
    A. When the Final Rule Must Be Implemented
    B. Status of 2004 Guidance Memorandum
IX. Consistency With the NPDES Electronic Reporting Rule
X. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

[[Page 89321]]

    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    Entities regulated [or affected] by this rule include:

----------------------------------------------------------------------------------------------------------------
                                                                                                  North American
                                                                                                     industry
                          Category                              Examples of regulated entities    classification
                                                                                                 system  (NAICS)
                                                                                                       code
----------------------------------------------------------------------------------------------------------------
Federal and state government................................  EPA or state NPDES stormwater               924110
                                                               permitting authorities;
                                                               operators of small municipal
                                                               separate storm sewer systems.
Local governments...........................................  Operators of small municipal                924110
                                                               separate storm sewer systems.
----------------------------------------------------------------------------------------------------------------

    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 or otherwise affected by this action. 
Other types of entities not listed in the table could also be 
regulated. To determine whether your entity is regulated by this 
action, you should carefully examine the applicability criteria found 
in 40 CFR 122.32, and the discussion in the preamble. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

B. What action is the Agency taking?

    EPA is issuing a final rule to revise its regulations governing the 
way in which small municipal separate storm sewer systems (MS4s) obtain 
coverage under National Pollutant Discharge Elimination System (NPDES) 
general permits and how required permit conditions are established. The 
rule results from a decision by the U.S. Court of Appeals for the Ninth 
Circuit in Environmental Defense Center, et al. v. EPA, at 344 F.3d 832 
(9th Cir. 2003) (``EDC decision''), which found that EPA regulations 
for obtaining coverage under a small MS4 general permit did not provide 
for adequate public notice, the opportunity to request a hearing, or 
permitting authority review to determine whether the best management 
practices (BMPs) selected by each MS4 in its stormwater management 
program (SWMP) meets the CWA requirements including the requirement to 
``reduce pollutants to the maximum extent practicable.'' The Federal 
Register published EPA's proposed rule on January 6, 2016 (81 FR 415). 
EPA proposed and solicited public comment on three options for 
addressing the remand. One option (called the ``Traditional General 
Permit Approach'') would require the permitting authority to establish 
within the general permit all requirements necessary for the regulated 
small MS4s to meet the applicable permit standard (to reduce pollutants 
to the maximum extent practicable (MEP), to protect water quality, and 
to satisfy the appropriate water quality requirements of the CWA), 
which would be subject to public notice and comment and an opportunity 
to request a hearing. The second proposed option (called the 
``Procedural Approach'') would require the permitting authority to 
incorporate an additional review and public comment step into the 
existing Phase II regulatory framework for permitting small MS4s 
through general permits. More specifically, once an MS4 operator 
submitted its Notice of Intent (NOI) requesting coverage under the 
general permit, an additional step would take place in which the 
permitting authority would review, and the public would be given an 
opportunity to comment and request a hearing on, the merits of the 
MS4's proposed BMPs and measurable goals for complying with the 
requirement to reduce discharges to the MEP, to protect water quality, 
and to satisfy the appropriate water quality requirements of the CWA. A 
third proposed option (called the ``State Choice Approach'') would 
enable the permitting authority to choose between the Traditional 
General Permit and Procedural Approaches, or to implement a combination 
of these approaches in issuing and authorizing coverage under a general 
permit. Today, EPA is issuing a rule that promulgates the ``State 
Choice Approach'' and has renamed it as the ``Permitting Authority 
Choice Approach.''

C. What is the Agency's authority for taking this action?

    The authority for this rule is the Federal Water Pollution Control 
Act, 33 U.S.C. 1251 et seq., including sections 402 and 501.

D. What are the incremental costs of this action?

    The Economic Analysis estimates the incremental costs to implement 
the final rule. EPA assumed that all other costs accrued as a result of 
the existing small MS4 program, which were accounted for in the 
Economic Analysis accompanying the 1999 final Phase II MS4 regulations, 
remain the same and are not germane to the Economic Analysis, unless 
the rule change would affect the baseline program costs. In this 
respect, EPA focused only on new costs that may be imposed as a result 
of implementing the final rule. It is, therefore, unnecessary to 
reevaluate the total program costs of the Phase II rule, since those 
costs were part of the original economic analysis conducted for the 
1999 Phase II rule (see 64 FR 68722, December 8, 1999). For further 
information, refer to the Economic Analysis that is included in the 
rule docket.
    EPA estimates the annualized cost of the final rule to be between 
$558,025 and $604,770, depending on the assumed discount rate. This can 
be thought of as the annual budgeted amounts each permitting authority 
would need to make available each year in order to be able to cover the 
increase in permitting authority efforts that would result every 5 
years. The total net present value of the compliance cost ranges from 
$5.5 million to $8.4 million, depending on the assumed discount rate. 
These estimates are all below the threshold level established by 
statute and various executive orders for determining that a rule has an 
economically significant or substantial impact on affected entities. 
See further discussion in Section X of this preamble.
    The Economic Analysis assumes that permitting authorities are the 
only entities that are expected to be impacted from this rule because 
the requirements modified by the rule focus only on the administrative 
manner in which general

[[Page 89322]]

permits are issued and how coverage under those permits is granted. EPA 
emphasizes that this final rule does not change the stringency of the 
underlying requirements in the statute or Phase II regulations to which 
small MS4 permittees are subject, nor does it establish new substantive 
requirements for MS4 permittees. Therefore, the Economic Analysis does 
not attribute new costs to regulated small MS4s beyond what they are 
already subject to under the statute and Phase II regulations. EPA 
acknowledges that many permitting authorities consider permitting a 
cost-neutral function, therefore some may increase permit fees to cover 
the increased costs associated with this rule.
    EPA used conservative assumptions about impacts on state workloads, 
meaning that the actual economic costs of complying with the final rule 
and implementing any new procedural changes are most likely lower than 
what is actually presented. EPA considers the cost assumptions to be 
conservative because as more permitting authorities issue general 
permits consistent with the new rule, other permitting authorities can 
use and build on those examples, reducing the amount of time it takes 
to draft the permit requirements, and permitting authorities will 
likely learn from experience as they move forward how to work more 
efficiently to issue and administer their general permits. EPA has 
issued guidance to permitting authorities on how to write better MS4 
permits (MS4 Permit Improvement Guide (EPA, 2010); Compendium of MS4 
Permitting Approaches--Part 2: Post Construction Standards (EPA, 2016); 
Compendium of MS4 Permitting Approaches--Part 3: Water Quality-Based 
Requirements (EPA, 2016)), and additional examples of permit provisions 
that are written in a ``clear, specific, and measurable'' manner for 
the six minimum control measures are included in the preamble to this 
rule. EPA also anticipates issuing further guidance once the rule is 
promulgated to assist permitting authorities in implementing the new 
rule requirements, which will in turn hopefully make permit writing 
more efficient. These gained efficiencies were not, however, accounted 
for in the option-specific cost assumptions.

II. Background

A. Statutory and Regulatory Overview

    Stormwater discharges are a significant cause of water quality 
impairment because they can contain a variety of pollutants such as 
sediment, nutrients, chlorides, pathogens, metals, and trash that are 
mobilized and ultimately discharged to storm sewers or directly to 
water bodies. Furthermore, the increased volume and velocity of 
stormwater discharges that result from the creation of impervious cover 
can alter streams and rivers by causing scouring and erosion. These 
surface water impacts can threaten public health and safety due to the 
increased risk of flooding and increased level of pollutants; can lead 
to economic losses to property and fishing industries; can increase 
drinking water treatment costs; and can decrease opportunities for 
recreation, swimming, and wildlife uses.
    Stormwater discharges are subject to regulation under section 
402(p) of the CWA. Under this provision, Congress required the 
following stormwater discharges initially to be subject to NPDES 
permitting requirements: Stormwater discharges for which NPDES permits 
were issued prior to February 4, 1987; discharges ``associated with 
industrial activity''; discharges from MS4s serving populations of 
100,000 or more; and any stormwater discharge determined by EPA or a 
state to ``contribute . . . to a violation of a water quality standard 
or to be a significant contributor of pollutants to waters of the 
United States.'' Congress further directed EPA to study other 
stormwater discharges and determine which needed additional controls. 
With respect to MS4s, section 402(p)(3)(B) provides that NPDES permits 
may be issued on a system-wide or jurisdiction-wide basis, and requires 
that MS4 NPDES permits ``include a requirement to effectively prohibit 
non-stormwater discharges into the storm sewers'' and require 
``controls to reduce the discharge of pollutants to the maximum extent 
practicable . . . and such other provisions as the Administrator or the 
State determines appropriate for the control of such pollutants.''
    EPA developed the stormwater regulations under section 402(p) of 
the CWA in two phases, as directed by the statute. In the first phase, 
under section 402(p)(4) of the CWA, EPA promulgated regulations 
establishing application and other NPDES permit requirements for 
stormwater discharges from medium (serving populations of 100,000 to 
250,000) and large (serving populations of 250,000 or more) MS4s, and 
stormwater discharges associated with industrial activity. EPA 
published the final Phase I rule on November 16, 1990 (55 FR 47990). 
The Phase I rule, among other things, defined ``municipal separate 
storm sewer'' as publicly-owned conveyances or systems of conveyances 
that discharge to waters of the U.S. and are designed or used for 
collecting or conveying stormwater, are not combined sewers, and are 
not part of a publicly-owned treatment works at Sec.  122.26(b)(8). EPA 
included construction sites disturbing five acres or more in the 
definition of ``stormwater discharges associated with industrial 
activity'' at Sec.  122.26(b)(14)(x).
    In the second phase, section 402(p)(5) and (6) of the CWA required 
EPA to conduct a study to identify other stormwater discharges that 
needed further controls ``to protect water quality,'' report to 
Congress on the results of the study, and to designate for regulation 
additional categories of stormwater discharges not regulated in Phase I 
on the basis of the study and in consultation with state and local 
officials. EPA promulgated the Phase II rule on December 8, 1999, 
designating discharges from certain small MS4s and from small 
construction sites (disturbing equal to or greater than one acre and 
less than five acres) and requiring NPDES permits for these discharges 
(64 FR 68722, December 8, 1999). A regulated small MS4 is generally 
defined as any MS4 that is not already covered by the Phase I program 
and that is located within the urbanized area boundary as determined by 
the latest U.S. Decennial Census. Separate storm sewer systems such as 
those serving military bases, universities, large hospitals or prison 
complexes, and highways are also included in the definition of ``small 
MS4.'' See Sec.  122.26(b)(16). In addition, the Phase II rule includes 
authority for EPA (or states authorized to administer the NPDES 
program) to require NPDES permits for currently unregulated stormwater 
discharges through a designation process. See Sec.  122.26(a)(9)(i)(C) 
and (D). Other small MS4s located outside of an urbanized area may be 
designated as a regulated small MS4 if the NPDES permitting authority 
determines that its discharges cause, or have the potential to cause, 
an adverse impact on water quality. See Sec. Sec.  122.32(a)(2) and 
123.35(b)(3).

B. MS4 Permitting Requirements

    The Phase I regulations are primarily comprised of requirements 
that must be addressed in applications for individual permits from 
large and medium MS4s. The regulations at Sec.  122.26(d)(2)(iv) 
require these MS4s to develop a proposed stormwater management program 
(SWMP), which is considered by EPA or the authorized state permitting 
authority when establishing permit conditions to reduce pollutants to 
the ``maximum extent practicable'' (MEP).

[[Page 89323]]

    Like the Phase I rule, the Phase II rule requires regulated small 
MS4s to develop and implement SWMPs. The regulations at Sec.  122.34(a) 
requires that SWMPs be designed to reduce pollutants discharged from 
the MS4 ``to the maximum extent practicable (MEP), to protect water 
quality, and to satisfy the appropriate water quality requirements of 
the Clean Water Act,'' and requires that the SWMPs include six 
``minimum control measures.'' The minimum control measures are: Public 
education and outreach, public participation and involvement, illicit 
discharge detection and elimination, construction site runoff control, 
post construction runoff control, pollution prevention and good 
housekeeping. See Sec.  122.34(b). Under the Phase II rule, a regulated 
small MS4 may seek coverage under an available general permit or may 
apply for an individual permit. To be authorized to discharge under a 
general permit, the rule requires submission of a Notice of Intent 
(NOI) to be covered by the general permit containing a description of 
the best management practices (BMPs) to be implemented and the 
measurable goals for each of the BMPs, including timing and frequency, 
as appropriate. See Sec. Sec.  122.33(a)(1), 122.34(d)(1).
    EPA anticipated that under the first two or three permit cycles, 
whether required in individual permits or in general permits, BMP-based 
controls implementing the six minimum control measures would, if 
properly implemented, ``be sufficiently stringent to protect water 
quality, including water quality standards, so that additional, more 
stringent and/or more prescriptive water quality based effluent 
limitations will be unnecessary.'' (64 FR 68753, December 8, 1999). In 
the final Phase II rule preamble, EPA also stated that it ``has 
intentionally not provided a precise definition of MEP to allow maximum 
flexibility in MS4 permitting. MS4s need the flexibility to optimize 
reductions in storm water pollutants on a location-by-location basis. . 
. . Therefore, each permittee will determine appropriate BMPs to 
satisfy each of the six minimum control measures through an evaluative 
process.'' (64 FR 68754, December 8, 1999).
    The agency described the approach to meet the MS4 permit standard 
in the preamble to the Phase II rule as an ``iterative process'' of 
developing, implementing, and improving stormwater control measures 
contained in SWMPs. As EPA further stated in the preamble to the Phase 
II rule, ``MEP should continually adapt to current conditions and BMP 
effectiveness and should strive to attain water quality standards. 
Successive iterations of the mix of BMPs and measurable goals will be 
driven by the objective of assuring maintenance of water quality 
standards. . . . If, after implementing the six minimum control 
measures there is still water quality impairment associated with 
discharges from the MS4, after successive permit terms the permittee 
will need to expand or better tailor its BMPs within the scope of the 
six minimum control measures for each subsequent permit.'' (64 FR 
68754, December 8, 1999).

C. Judicial Review of the Phase II Rule and Partial Remand

    The Phase II rule was challenged in petitions for review filed by 
environmental groups, municipal organizations, and industry groups, 
resulting in a partial remand of the rule. Environmental Defense Center 
v. U.S. Environmental Protection Agency, 344 F.3d. 832 (9th Cir. 2003) 
(EDC). The court remanded the Phase II rule's provisions for small MS4 
general permits because they lacked procedures for permitting authority 
review and public notice and the opportunity to request a hearing on 
NOIs submitted under general MS4 permits.
    In reviewing how the Phase II rule provided for general permit 
coverage for small MS4s, the court found that the way in which NOIs 
function under the rule was not the same as in other NPDES general 
permits. Other general permits contain within the body of the general 
permit the specific effluent limitations and conditions applicable to 
the class of dischargers for which the permit is available. In this 
situation, authorization to discharge under a general permit is 
obtained by filing an NOI in which the discharger agrees to comply with 
the terms of the general permit and in which the operator provides some 
basic information (e.g., site location, receiving waters) to help 
determine eligibility. In contrast, the court held that under the Phase 
II rule, because the NOI submitted by the MS4 contains the information 
describing what the MS4 will do to reduce pollutants to the MEP, it is 
the ``functional equivalent'' of an individual permit application. See 
EDC, 344 F.3d. at 857. Because the CWA requires public notice and the 
opportunity to request a public hearing for all permit applications, 
the court held that failure to require public notice and the 
opportunity for a public hearing for NOIs under the Phase II rule is 
contrary to the Act. See EDC, 344 F.3d. at 858.
    Similarly, the court found the Phase II rule allows the MS4 to 
identify the BMPs that it will undertake in its SWMP without any 
permitting authority review. The court held that the lack of review 
``to ensure that the measures that any given operator of a small MS4 
has decided to undertake will in fact reduce discharges of pollutants 
to the maximum extent practicable'' also does not comport with CWA 
requirements. The court stated, ``That the Rule allows a permitting 
authority to review an NOI is not enough; every permit must comply with 
the standards articulated by the Clean Water Act, and unless every NOI 
issued under general permit is reviewed, there is no way to ensure that 
such compliance has been achieved.'' See EDC, 344 F.3d. at 855 n.32. 
The court therefore vacated and remanded ``those portions of the Phase 
II Rule that address these procedural issues . . . so that EPA may take 
appropriate action to comply with Clean Water Act.'' See EDC, 344 F.3d. 
at 858.

III. Summary of the Proposed Rule and Comments Received

A. Scope of the Proposed Rule

    EPA proposed revisions to the Phase II MS4 NPDES permitting 
requirements on January 6, 2016 (81 FR 415) to respond to the Ninth 
Circuit's remand in Environmental Defense Center v. U.S. Environmental 
Protection Agency, 344 F.3d. 832 (9th Cir. 2003). To address the 
remand, the regulations must ensure that permitting authorities 
determine what permit requirements are needed to reduce pollutants from 
each permitted small MS4 ``to the maximum extent practicable (MEP), to 
protect water quality, and to satisfy the appropriate water quality 
requirements of the Clean Water Act'' (referred to hereinafter as the 
``MS4 permit standard''). The rule must also require NPDES permitting 
authorities to provide the public with the opportunity to review, 
submit comments, and request a public hearing on these permit 
requirements. EPA did not propose modifications to any of the 
substantive requirements that were promulgated in the Phase II rule 
(nor did EPA reopen or seek comment on any aspect of the Phase I rule, 
which was described in the preamble of the proposed rule for 
informational purposes only).
    In the remand decision, the court established in broad and clear 
terms what is needed for general permits that cover regulated small 
MS4s and therefore provided EPA with what minimum attributes should be 
part of any revisions to the Phase II regulations. The court stated 
that ``every permit must comply with the standards articulated by the 
Clean Water Act, and

[[Page 89324]]

unless every NOI issued under a general permit is reviewed, there is no 
way to ensure that such compliance has been achieved.'' See EDC, 344 
F.3d at 855, n. 32. In the court's view, the NOI served as the document 
that established how the MEP standard would be met: ``Because a Phase 
II NOI establishes what the discharger will do to reduce discharges to 
the `maximum extent practicable,' the Phase II NOI crosses the 
threshold from being an item of procedural correspondence to being a 
substantive component of a regulatory scheme.'' See EDC, 344 F.3d at 
853. Since review of the NOI by the permitting authority was not 
specified in the regulation, and Sec.  122.34(a) stated that compliance 
with the storm water management program developed by the permittee 
constituted compliance with the MEP standard, the court also expressed 
concern that the regulation put the MS4 in charge of establishing its 
own requirements. ``[U]nder the Phase II Rule nothing prevents the 
operator of a small MS4 from misunderstanding or misrepresenting its 
own stormwater situation and proposing a set of minimum measures for 
itself that would reduce discharges by far less than the maximum extent 
practicable.'' See EDC, 344 F.3d at 855. Further, the court found that 
the failure to require public notice or opportunity to submit comments 
or request a public hearing for each NOI violated requirements 
applicable to all CWA permits in accordance with section 402(b)(3). See 
EDC, 344 F.3d at 857.

B. Description of Options Proposed

    EPA proposed for comment the following three options to address the 
regulatory shortcomings found in the remand decision.
1. Option 1 (``Traditional General Permit Approach'')
    Under the proposed Traditional General Permit Approach, the 
permitting authority must establish in any small MS4 general permit the 
full set of requirements that are deemed necessary to meet the MS4 
permit standard (``reduce pollutants to the maximum extent practicable, 
protect water quality and satisfy the appropriate water quality 
requirements of the Clean Water Act''), and the administrative record 
would include an explanation of the rationale for its determination. 
(This approach contrasts with the original regulations, which appeared 
to the court to provide the permittee with the ability to establish its 
own requirements.) Once the permit is issued, and the terms and 
conditions in the permit are fixed for the term of the permit, neither 
the development of a SWMP document nor the submittal of an NOI for 
coverage would represent new permit requirements. Thus, because the 
permit contains all of the requirements that will be used to assess 
permittee compliance, the permitting authority would no longer need to 
rely on the MS4's NOI as the mechanism for ascertaining what will occur 
during the permit term. Under this approach, the function of the NOI 
would be more similar to that of any other general permit NOI, and more 
specifically other stormwater general permits, whereby the NOI is used 
to establish certain minimum facts about the discharger, including the 
operator's contact details, the discharge location(s), and confirmation 
that the operator is eligible for permit coverage and has agreed to 
comply with the terms of the permit. By removing the possibility that 
effluent limits could be proposed in the NOI (and for that matter in 
the SWMP) and made part of the permit once permit coverage is provided, 
the NOI would no longer look and function like an individual permit 
application, as the court found with respect to MS4 NOIs under the 
Phase II regulations currently in effect. Therefore, it would not be 
necessary to carry out the type of additional permitting authority 
review and public participation procedures contemplated by the Ninth 
Circuit court in the remand decision. These requirements would be met 
during the process of issuing the general permit.
2. Option 2 (``Procedural Approach'')
    Under the proposed Procedural Approach, the permitting authority 
would establish applicable permit requirements to meet the MS4 permit 
standard by going through a second permitting step following the 
issuance of the general permit (referred to as the ``base general 
permit''), similar to the procedures used to issue individual NPDES 
permits. Eligible MS4 operators would be required to submit NOIs with 
the same information that has always been required under the Phase II 
regulations, that is, a description of the BMPs to be implemented by 
the MS4 operator during the permit term, and the measurable goals 
associated with each BMP. Following the receipt of the NOI, the 
permitting authority would review the NOI to assess whether the 
proposed BMPs and measurable goals meet the MS4 permit standard. If 
not, the permitting authority would request supplemental information or 
revisions as necessary to ensure that the submission satisfies the 
regulatory requirements. Once satisfied with the submission, the 
permitting authority would be required to propose incorporating the 
BMPs and measurable goals in the NOI as permit requirements and to 
provide public notice of the NOI and an opportunity to submit comments 
and to request a hearing in accordance with Sec. Sec.  124.10 through 
124.13. After consideration of comments received and a hearing, if 
held, the permitting authority would provide notice of its decision to 
authorize coverage under the general permit, along with any MS4-
specific requirements established during this second process. Upon 
completion of this process, the MS4 would be required to comply with 
the requirements set forth in the base general permit and the 
additional terms and conditions established through the second-step 
process.
3. Option 3 (``State Choice Approach'')
    The proposed rule also requested comment on a State Choice 
Approach, which would allow permitting authorities to choose either the 
Traditional General Permit Approach or the Procedural Approach, or some 
combination of the two as would best suit their needs and 
circumstances. As described in the proposed rule, the permitting 
authority could, for example, choose to use Option 1 for small MS4s 
that have fully established programs and uniform core requirements, and 
Option 2 for MS4s that it finds would benefit from the additional 
flexibility to address unique circumstances, such as those encountered 
by non-traditional MS4s (e.g., state departments of transportation, 
public universities, military bases). Alternatively, a state could 
apply a hybrid of the two approaches within one permit by defining some 
elements within the general permit, which, consistent with the Option 1 
approach, are deemed to meet the MS4 permit standard, and establishing 
additional permit requirements through the Option 2 procedural approach 
for each MS4 seeking coverage under the General Permit. Under a hybrid 
approach, any requirements established in the general permit that fully 
articulate what is required to meet the MS4 permit standard would 
require no further permitting authority review and public notice 
proceedings; however, for any terms and conditions established for 
individual MS4s based in part on information submitted with the NOI 
would need to follow the Option 2 approach for incorporating these 
requirements into the permit as enforceable requirements.

[[Page 89325]]

C. General Summary of Comments Received

    EPA received about 70 unique comments on the proposed rule from the 
MS4 community, states, environmental groups, industry associations, and 
engineering firms. Most commenters favored Option 3--the ``State 
Choice'' option. While several expressed support for their states using 
the Traditional General Permit or Procedural Approach, a number of 
these same commenters acknowledged that these approaches would likely 
not work in all situations if EPA were to adopt either one as the sole 
option under the final rule. EPA notes that while most of the 
environmental organization commenters expressed support for a hybrid 
option, which technically falls under the State Choice option, they 
also strongly recommended mandating that the Traditional General Permit 
Approach be used for permit requirements related to the six minimum 
control measures and that the Procedural Approach be used for water 
quality-based requirements, such as requirements for implementing total 
maximum daily loads (TMDLs).
    A common reason given for supporting the State Choice approach 
included the flexibility it would give authorized states to use 
different options to address different situations and that it would 
minimize disruption to existing programs. Several states that now use a 
traditional general permit approach or a procedural approach stressed 
the importance of providing choices for other states. EPA notes that no 
commenter expressly opposed the State Choice approach. EPA discusses 
these comments in the context of its decision to adopt the State Choice 
approach in the final rule in Section IV of the preamble below.
    EPA received a significant number of comments concerning its 
proposed changes to the way in which permit terms and conditions must 
be expressed, particularly with respect to the proposed deletion of the 
word ``narrative'' in Sec.  122.34(a). These comments focused on the 
concern that EPA was moving away from support of the use of BMPs to 
comply with stormwater permits and from the longstanding ``iterative 
approach'' to meeting MS4 permit requirements. EPA discusses these 
comments and the changes made in response to these comments in the 
final rule in Section V of the preamble.
    In addition to responding to major comments in the preamble, EPA 
has prepared a Response to Comment document, which can be found in the 
docket for this rulemaking.

IV. Summary of the Final Rule

A. Selection of the ``Permitting Authority Choice'' Approach

    EPA is selecting proposed Option 3 (the ``State Choice Approach'') 
for the final rule, described in Section III.B.3. The new name for this 
option better captures the universe of entities that will implement the 
rule, i.e., any NPDES permitting authority including EPA Regions and 
authorized states. Under this approach, the NPDES permitting authority 
may choose between two alternative means of establishing permit 
requirements in general permits for small MS4s. The final rule amends 
Sec.  122.28(d) to require permitting authorities to choose one of 
these two types of general permits whenever issuing a small MS4 general 
permit. Permitting authorities are required to select either the 
``Comprehensive General Permit'' or ``Two-Step General Permit''. The 
``Comprehensive General Permit'' is essentially the ``Traditional 
General Permit'', or ``Option 1'', from the proposed rule. The ``Two-
Step General Permit'' encompasses both the ``Procedural Approach'', or 
``Option 2'' and the ``hybrid approach'' that was described as part of 
``Option 3'' from the proposed rule. The Two-Step General Permit allows 
the permitting authority to establish some requirements in the general 
permit and others applicable to individual MS4s through a second 
proposal and public comment process.

B. Description of the Two Permitting Alternatives Under the Permitting 
Authority Choice Approach

    As described in Section IV.A, the Permitting Authority Choice 
Approach requires permitting authorities to choose between two 
alternative approaches to issue general permits for small MS4s. These 
two types of general permits are described briefly as follows:
     Comprehensive General Permit--For this type of general 
permit, the permitting authority issues a small MS4 general permit that 
includes the full set of requirements necessary to meet the MS4 permit 
standard of ``reducing pollutant discharges from the MS4 to the maximum 
extent practicable (MEP), to protect water quality, and to satisfy the 
appropriate water quality requirements of the CWA.'' Under the 
Comprehensive General Permit, all requirements are contained within the 
general permit, and no additional requirements are established after 
permit issuance, as is the case with the ``Two-Step General Permit'' 
described below. For this reason, to provide coverage to eligible small 
MS4s, the permitting authority can use a traditional general permit NOI 
as described in Sec.  122.28(b)(2)(ii), and does not need to require 
additional information from each operator concerning how they will 
comply with the permit, for instance the BMPs that will be implemented 
and the measurable goals for each control measure, as a prerequisite to 
authorizing the discharge. See further discussion of the role of the 
NOI in Section IV.E.
     Two-Step General Permit (combination of the proposed 
Procedural and Hybrid Approaches)-- For the Two-Step General Permit, 
after issuing a base general permit, the permitting authority 
establishes through the completion of a second permitting step 
additional permit terms and conditions that are necessary to meet the 
MS4 permit standard for each MS4 seeking authorization to discharge 
under the general permit. These additional terms and conditions 
supplement the requirements of the general permit for individual MS4 
permittees. It is in the second permitting step where the permitting 
authority satisfies its obligation to review the NOI for adequacy, 
determine what additional requirements are needed for the MS4 to meet 
the MS4 permit standard, and provide public notice and an opportunity 
for the public to submit comments and to request a hearing. See 
discussion of the second permitting step in Section V.B. Upon 
completion of this process, the MS4 permittee is authorized to 
discharge subject to the terms of the general permit and the additional 
requirements that apply individually to that MS4.
    The Two-Step General Permit encompasses the ``hybrid'' approach 
described in the proposed rule (see Section VI.C), where the permitting 
authority includes specific permit terms and conditions within the base 
general permit, but also establishes additional requirements to meet 
the MS4 permit standard through a second permitting step. For the final 
rule, EPA intentionally used rule language that would enable permitting 
authorities to use a Two-Step General Permit to implement a hybrid 
approach by referring to both ``required permit terms and conditions in 
the general permit applicable to all eligible small MS4s'' and 
``additional terms and conditions to satisfy one or more of the permit 
requirements in Sec.  122.34 for individual small MS4 operators.'' See 
Sec.  122.28(d)(2).
    The final rule requires that the permitting authority indicate 
which

[[Page 89326]]

type of general permit it is using for any small MS4 general permit. 
This statement or explanation may be included in the general permit 
itself or in the permit fact sheet. EPA notes that the permitting 
authority may choose to change the permitting approach for subsequent 
permits. Questions concerning when the final rule change takes effect 
are discussed in Section VIII.A.

C. Summary of Regulatory Changes To Adopt the Permitting Authority 
Choice Approach

    The final rule implements the Permitting Authority Choice option in 
several different sections of the NPDES regulations. Below is a brief 
summary of the most significant changes and where they can be found in 
the final rule:
     Permitting Authority Choice Approach (Sec.  122.28(d)): 
The final rule adds a new paragraph (d) to Sec.  122.28 that requires 
the permitting authority to select between two alternative general 
permits. This section describes both types of general permits (the 
``Comprehensive General Permit'' and the ``Two-Step General Permit'') 
and the minimum requirements associated with each. EPA chose to include 
the Permitting Authority Choice in a different section of the 
regulations than was proposed. EPA determined upon further 
consideration that rather than including all of the requirements within 
the application and NOI section of the Phase II regulations now at 
Sec.  122.33, the two alternatives comprising the Permitting Authority 
Choice Approach fit better within the general permit regulations as a 
unique set of requirements affecting general permits for regulated 
small MS4s.
     Changes to the NOI requirements (Sec.  122.33): The final 
rule includes modifications to the requirements for what must be 
included in NOIs submitted for coverage under small MS4 general 
permits. The required contents of the NOI vary depending on the type of 
general permit used. For permitting authorities choosing a 
Comprehensive General Permit, the final rule enables the permitting 
authority to reduce the information required in NOIs to the minimum 
information required for any general permit NOI in Sec.  
122.28(b)(2)(ii). See Sec.  122.33(b)(1)(i). For permitting authorities 
choosing the Two-Step General Permit, the final rule provides the 
permitting authority with the ability to determine what information it 
deems necessary to establish individual requirements for MS4 operators 
that meet the MS4 permit standard. See Sec.  122.33(b)(1)(ii), and 
additional discussion of these and other changes to Sec.  122.33 in 
Section V.D.1.
     Clarifications to the requirements for small MS4 permits 
(Sec.  122.34): Regardless of the permitting approach chosen by the 
NPDES authority, the terms and conditions of the resulting general 
permits must adhere to the requirements of Sec.  122.34. The final rule 
retains modifications from the proposed rule that clarify that it is 
the permitting authority's responsibility, and not that of the small 
MS4 permittee, to establish permit terms and conditions that meet the 
MS4 regulatory standard and to delineate the requirements for 
implementing the six minimum control measures, other terms and 
conditions deemed necessary by the permitting authority to protect 
water quality, as well as any other requirement. The final rule also 
emphasizes that permit requirements must be expressed in ``clear, 
specific, and measurable'' terms. These modifications do not alter the 
existing, substantive requirements of the six minimum control measures 
in Sec.  122.34(b). See further discussion of these changes in Section 
VI.

D. Commonalities Among the Two Types of General Permits

    The two options available to the permitting authority under the 
final rule involve different steps and require differing levels of 
administrative oversight; however, at a basic level, they share the 
same underlying characteristics. Each type of general permit shares in 
common that through the permitting process, the permitting authority 
must determine which requirements a small MS4 must meet in order to 
satisfy the MS4 permit standard. Both types of general permits also 
require that the specific actions that comprise what is necessary to 
meet the MS4 permit standard be established through the permitting 
process. The key distinction between the two types of permits is that 
they establish permit terms and conditions at different points in time 
during the permitting process. For Comprehensive General Permits, the 
determination as to what requirements are needed to satisfy the MS4 
permit standard is made as part of the issuance of the general permit. 
By contrast, for Two-Step General Permits, the permitting authority 
makes this determination both in the process of issuing the general 
permit and in the process of establishing additional permit 
requirements applicable on an individual basis to each MS4 covered 
under the general permit, based on information in the NOI.
    The final rule also places both types of general permits on a level 
playing field with respect to the requirements that must be addressed 
in any general permit issued to a small MS4. Regardless of which type 
of general permit is used to establish permit terms and conditions, 
every small MS4 general permit must include requirements that address 
the minimum control measures (Sec.  122.34(b)), water quality-based 
requirements where needed (Sec.  122.34(c)), and evaluation and 
assessment requirements (Sec.  122.34(d)). The final rule clarifies 
that all such terms and conditions must be expressed in terms that are 
``clear, specific, and measurable.'' The important attribute here is 
that permit requirements must be enforceable, and must provide a set of 
performance expectations and schedules that are readily understood by 
the permittee, the public, and the permitting authority alike. For both 
types of general permits, requirements may be expressed in narrative or 
numeric form, as long as they are clear, specific, and measurable. This 
requirement for clear, specific, and measurable requirements applies to 
any permit term or condition established under Sec.  122.34, including 
requirements addressing the minimum control measures, any water 
quality-based requirements, and the evaluation, recordkeeping, and 
reporting requirements. Section VII of this preamble contains a 
detailed discussion about establishing permit terms and conditions.
    Importantly, the final rule also ensures that the process for 
issuing both types of general permit addresses the deficiencies found 
by the Ninth Circuit to exist in the Phase II regulations. While the 
court's opinion focused on the role of the NOI in the Phase II rule for 
MS4 general permits, the court made it clear that under the CWA, the 
permitting authority must determine which MS4 permit requirements are 
adequate to meet the MS4 permit standard, and that the public must have 
the opportunity to review and comment on those permit requirements and 
to request a hearing. All of these core CWA requirements are present in 
the final rule. For Comprehensive General Permits, once the permit is 
issued it has gone through permitting authority review, public notice 
and comment, and the opportunity to request a hearing. Permitting 
authority review and public comment and opportunity for a hearing 
occurs in the process of drafting permit conditions and soliciting 
comment on the draft general permit. Permitting authority determination 
of what an MS4 must do to meet the MS4 permit standard occurs in the 
process of issuing

[[Page 89327]]

the final permit after consideration of comments. By comparison, for 
Two-Step General Permits, permitting authority review, public notice 
and comment, and the opportunity to request a hearing occur first on 
the draft general permit and again on the additional terms and 
conditions applicable to each MS4 authorized to discharge under the 
general permit. Under the Two-Step process, the CWA requirements for 
permitting authority review and public comment and opportunity for 
hearing are only fully addressed after the completion of the discharge 
authorization process for each individual small MS4 operator seeking 
coverage under the general permit. To ensure that these CWA 
requirements are met, the final rule supplements the administrative 
steps necessary to issue the base general permit with procedures that 
ensure that any decision to authorize an individual MS4 to discharge 
based on information included in the NOI is subject to review by the 
permitting authority, and the public has the opportunity to review and 
submit comments, and to request a hearing on the terms and conditions 
that will be incorporated as enforceable permit terms.

E. Role of the NOI Under the Permitting Authority Choice Approach

    The two permitting options available under the final rule include 
important changes in the relationship between the MS4 operator's NOI 
and the general permit. Under the 1999 Phase II regulations, any MS4 
operator seeking coverage under a small MS4 general permit has been 
required to submit information in the NOI describing, at a minimum, the 
BMPs that would be implemented for each minimum control measure during 
the permit term, and the measurable goals associated with each BMP. 
These NOIs differ significantly from the typical general permit NOI, 
which is required to include far less information, and ``represents no 
more than a formal acceptance of [permit] terms elaborated elsewhere'' 
in the general permit. See EDC, 344 F. 3d. at 852. Under the NPDES 
regulations at Sec.  122.28(b)(2)(ii), the NOI is a procedural 
mechanism to document operator eligibility, to certify that the 
information submitted by the operator is accurate and truthful, and to 
confirm the operator's intention to be covered by the terms and 
conditions of the general permit.
    The Ninth Circuit court, in its remand decision, likened the NOI 
under the remanded regulations to being ``functionally equivalent to a 
detailed application for an individualized permit,'' since the MS4 
operator was in essence proposing to the permitting authority what it 
intended to accomplish to satisfy the MS4 permit standard. The court 
found it to differ markedly from the NOI utilized for most general 
permits, that is, limited to ``an item of procedural correspondence.'' 
344 F. 3d. at 853. The similarity in the court's view between the NOI 
under the Phase II regulations and an individual permit application, 
combined with the failure of the regulations to require permitting 
authority review or to provide the opportunity for the public to 
comment and request a hearing on the NOI, were key factors in the Ninth 
Circuit finding that the regulations had violated the CWA.
    The final rule modifies the way in which the NOI functions in 
important respects so that it addresses the problems found by the Ninth 
Circuit. For a Comprehensive General Permit, because the permit 
contains all of the requirements that will be used to assess permittee 
compliance, the permitting authority no longer needs to rely on the 
MS4's NOI as the mechanism for ascertaining what will occur during the 
permit term. In this way, the function of the NOI is the same as that 
of any other general permit NOI, and more specifically other stormwater 
general permits, where the NOI is used to establish certain minimum 
facts about the discharger, including the operator's contact details, 
the discharge location(s), and confirmation that the operator is 
eligible for permit coverage and has agreed to comply with the terms of 
the permit. It is for this reason, therefore, that the final rule 
establishes no additional requirements for the information required to 
be included in NOIs beyond what is already required for other general 
permits in Sec.  122.28(b)(2)(ii). See Sec.  122.33(b)(1) in the final 
rule. By removing the possibility that permit requirements could be 
proposed in the NOI (or in the SWMP) and made part of the permit once 
permit coverage is provided under the Comprehensive General Permit 
approach, the NOI will no longer look and function like an individual 
permit application, as the court found with respect to MS4 NOIs under 
the original Phase II regulations. Similarly, because the NOI no longer 
bears the similarity of an individual permit application, it is no 
longer necessary to carry out the type of additional permitting 
authority review and public participation steps contemplated by the 
Ninth Circuit.
    By contrast, for coverage under a Two-Step General Permit, the NOI 
needs to include information to assist the permitting authority in 
developing the additional permit requirements for each permittee. For 
this NOI, the permitting authority requires more detailed information 
from the MS4 operator so that it can determine what additional permit 
terms and conditions are necessary in order to satisfy the MS4 permit 
standard. The NOI in the Two-Step General Permit is likely to include 
much of the same information that has been required of MS4 operators 
under the regulations since they were promulgated in 1999. The major 
difference now is that the permitting authority reviews the NOI 
materials to determine what additional permit terms and conditions are 
necessary for the individual MS4 to meet the MS4 permit standard, and 
to provide an opportunity for the public to comment and request a 
hearing on this determination.
    The proposed rule would have required the full set of information 
required for individual permit applications in Sec.  122.33(b)(2)(i), 
including the proposed BMPs to be implemented for the minimum control 
measures, measurable goals for each BMP (as required by Sec.  122.34(d) 
of the original regulations), the persons responsible for implementing 
the stormwater management program, the square mileage served by the 
MS4, and any other information deemed necessary. In the final rule, EPA 
is taking a slightly different approach and giving the permitting 
authority the flexibility to determine what information it needs to 
request in its Two-Step General Permit NOI rather than requiring by 
default that all of the individual permit application information be 
submitted. This will give the permitting authority the ability to 
request what information it needs to establish the necessary additional 
terms and conditions for each individual MS4 to meet the MS4 permit 
standard. If the permitting authority needs information from all of its 
MS4s on the BMPs and measurable goals they propose for the permit term 
in order to establish suitable permit requirements, then it has the 
discretion to require this information. See Sec. Sec.  122.28(d)(2)(i) 
and 122.33(b)(1)(ii), which states that the information requested by 
the permitting authority ``may include, but is not limited to, the 
information required under Sec.  122.33(b)(2)(i).''
    Alternatively, under the final rule, if the general permit terms 
and conditions already define what is required to meet the MS4 permit 
standard for several of the minimum control measures then the 
permitting authority could decide that it is no longer necessary to 
require the submittal of information on the BMPs and measurable goals 
associated with

[[Page 89328]]

those minimum control measures. As noted by a commenter, requiring 
information from MS4s related to permit terms and conditions that have 
already been established is likely to be redundant and represent an 
unnecessary burden. At the same time, the permitting authority must be 
able to obtain sufficient information to establish clear, specific, and 
measurable permit terms and conditions. Under the final rule, there is 
no minimum requirement with respect to what information is needed. In 
short, the permitting authority must request the information it needs 
to be able to make an informed decision when establishing clear, 
specific, and measurable permit terms and conditions for the permittee 
to ensure that it will meet the MS4 permit standard. The final rule 
enables the permitting authority to determine what the right amount of 
information is needed to meet this requirement.

F. Permitting Authority Flexibility To Choose the Most Suitable 
Approach

    The final rule provides permitting authorities with full discretion 
to choose which option is best suited for its permitting needs and 
specific circumstances. While there are significant considerations, 
advantages, and disadvantages to selecting either of the two permitting 
approaches, EPA is leaving the decision of which method to adopt for 
each general permit up to the permitting authority. In providing full 
discretion to the permitting authority to choose which approach to use, 
EPA agreed with commenters that recommended against adopting conditions 
or constraints on the selection of either of the two options. EPA also 
expects that the decision as to which approach to adopt for any given 
small MS4 general permit may change from one permit term to the next. 
Therefore, if the permitting authority elects to issue its next general 
permit by implementing the ``Comprehensive General Permit Approach'' 
there is nothing preventing the permitting authority from switching 
approaches to the ``Two-Step General Permit Approach'' in subsequent 
permit terms, or vice versa.
    EPA requested comment on whether the agency should constrain the 
permitting authority's discretion under Option 3 by requiring the use 
of the ``Traditional General Permit Approach'' (now the ``Comprehensive 
General Permit'') for some types of permit terms and conditions, while 
allowing the ``Procedural Approach (now the ``Two-Step General 
Permit'') to be used for other requirements. Several commenters 
recommended that EPA require permitting authorities to use the proposed 
``Traditional General Permit Approach'' to establish permit 
requirements for the minimum control measures in Sec.  122.34(b) and to 
allow the use of the proposed ``Procedural Approach'' for the 
establishment of water quality-based effluent limits, such as those 
implementing total maximum daily loads (TMDLs). EPA refers to this 
approach below as a ``fixed hybrid approach.'' Other commenters were 
opposed to a fixed hybrid approach and urged EPA to provide permitting 
authorities with maximum discretion to choose which option works best 
without stipulating which option must be used for specific types of 
permit requirements.
    After consideration of these comments, EPA has determined that it 
is unnecessary to mandate which permitting approach is used for 
specific types of requirements. Primarily, EPA does not wish to 
prejudge what approach permitting authorities use to arrive at clear, 
specific, and measurable requirements that result in achieving the MS4 
permit standard. As an overall matter, EPA views both of the approaches 
in the final rule as equally valid ways of establishing the required 
permit terms and conditions and meeting the remand requirements.
    Having said this, however, EPA recognizes that some types of 
requirements are more easily established through the general permit 
than others. For instance, clear, specific, and measurable permit 
requirements that address the minimum control measures, due to their 
broad applicability to all MS4s, may be easier to develop and include 
within the general permit, than requirements addressing TMDLs. EPA's 
MS4 Permit Improvement Guide (EPA, 2010) and the MS4 permit compendia 
\1\ provide a number of ready examples for how permits may establish 
clear, specific, and measurable requirements that implement the six 
minimum control measures. On the other hand, the necessarily site- and 
watershed-specific nature of TMDLs, combined with the fact that 
effective implementation of TMDLs is enhanced through involvement of 
the public at the local level, makes these types of requirements more 
amenable to being developed through the procedural requirements of the 
second permitting step within the Two-Step General Permit. To 
illustrate this point, a number of states have already adopted 
approaches that enable the MS4s to first develop and propose something 
like a TMDL implementation plan, followed by a step where the state 
permitting authority reviews and approves the plan to make it an 
enforceable part of the permit. See related examples in EPA's 
Compendium of MS4 Permitting Approaches--Part 3: Water Quality-Based 
Requirements (EPA, 2016).\2\ In this situation, under the final rule, 
the permitting authority would establish the MS4's TMDL implementation 
requirements as part of the second step of the general permit and 
follow the procedures applicable to the Two-Step General Permit in 
Sec.  122.28(d)(2).
---------------------------------------------------------------------------

    \1\ These documents can be found on EPA's Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
    \2\ This document will be made available on EPA's Web site at 
https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
---------------------------------------------------------------------------

    EPA anticipates that some permitting authorities may over time 
appreciate the benefits of not having to go through a second process 
step for individual review and individualized public notices for each 
MS4, and may as an alternative choose to establish the required permit 
terms and conditions necessary to meet the MS4 permit standard in the 
general permit. Under the Two-Step General Permit, the permitting 
authority must provide public notice for each MS4's NOI and the 
proposed additional permit terms and conditions to be applied to the 
MS4, and review and process comments and any requests for a public 
hearing before finalizing the permit terms and conditions. By 
comparison, there is only one public notice for an opportunity to 
comment and request a hearing for a Comprehensive General Permit. Even 
if deciding that a Comprehensive General Permit is not the best fit, 
some permitting authorities may find it easier over time to move more 
requirements into the base general permit so that the number of 
permitting provisions subject to the additional individualized review 
and public notice is reduced.

G. Why EPA Did Not Choose Proposed Option 1 or 2 as Stand-Alone Options

    By adopting the proposed State Choice Approach (Option 3) (now 
called the ``Permit Authority Choice Approach'') for the final rule, 
EPA is making a decision to not adopt Option 1 (the ``Traditional 
General Permit Approach'') or Option 2 (the ``Procedural Approach'') 
from the proposal as the sole approach by which permitting authorities 
issue and administer their small MS4 general permits. As stated in 
Section V.B., the public comments were heavily in favor of adopting 
Option 3, although there were also proponents for finalizing

[[Page 89329]]

proposed Option 1 and for finalizing an approach that would require use 
of proposed Option 1 for the minimum control measures and proposed 
Option 2 for water quality-based requirements. EPA ultimately found 
most persuasive the comments arguing in favor of choosing Option 3 to 
give permitting authorities flexibility and discretion to determine how 
it would develop different permit requirements.
    A major theme among comments favoring Option 3 was the emphasis on 
the flexibility it would provide permitting authorities to choose which 
approach works best in their state. This flexibility will be important, 
according to a number of commenters, to continue to be able to 
administer a program that includes local governments with divergent 
geography, land resources and uses, and financial and resource 
capacities. According to a number of commenters, Option 3 would also 
give permitting authorities a range of options for crafting permit 
conditions for non-traditional MS4s (e.g., universities, hospitals, 
military bases, road and highway systems), which in many cases require 
different types of permit provisions than traditional MS4s due to their 
lack of regulatory, land use, and/or police powers and more limited 
audiences. Other comments focused on the significant burden that would 
be placed on states and regulated MS4s if required to adopt one uniform 
approach, especially in cases where the permitting authority is already 
implementing approaches that are similar to either proposed Option 1 or 
2. In some cases, the way in which permitting authorities write and 
administer their small MS4 general permits is a direct result of state 
case law or concern about the risk of state litigation, and these 
states argue forcefully in their comments about the importance of 
retaining their approach in light of this history. According to these 
comments, those permitting authorities that have chosen one or the 
other of Option 1 or 2 should be able to continue implementing that 
approach.
    Another related common theme among the comments was an argument 
against adopting either proposed Option 1 or Option 2 as a national, 
one size fits all approach. These comments emphasized the difficulties 
associated with forcing all permit terms and conditions into one 
general permit for all MS4 types and all water quality considerations 
using the proposed Option 1 approach, and underscored the resource 
demands associated with implementing an Option 2 approach. Many of 
these commenters concluded that Option 3 would be the best way of 
preserving the permitting authority's flexibility to tailor their 
approach based on what would work best for each state's circumstances.
    Based on these comments, EPA chose Option 3, the Permitting 
Authority Choice option, because both options are valid ways of 
addressing the court's remand and there is no reason to compel 
permitting authorities to adopt one or the other of the approaches in 
proposed Option 1 or Option 2. EPA also appreciates that those state 
permitting authorities that are already moving their small MS4 
permitting approaches in the direction of either Option 1 or 2 are 
doing so for a number of legitimate reasons that relate to these 
states' individual circumstances. By enabling permitting authorities to 
choose which option works best, EPA is avoiding disrupting already 
established state preferences. This is not to say that permitting 
authorities will not have to make changes to conform their procedures 
to the requirements of the final rule.
    EPA also received comments urging the Agency not to adopt Option 2 
as the only permitting choice available to permitting authorities 
because of the resource burdens associated with the Option 2 approach, 
especially the requirement to individually review and approve terms and 
conditions for their small MS4s. EPA does not dispute the fact that 
Option 2, which has been finalized as the ``Two-Step General Permit'', 
is resource intensive; this approach requires significant 
administrative oversight by design. The process of conducting an 
individual review of each MS4 operator's NOI, developing a proposal for 
comment of unique terms and conditions based on the NOI, and processing 
any public comments or requests for public hearings will require 
additional resources of the permitting authority if it is not already 
implementing this type of approach. Any permitting authority choosing 
this approach will need to carefully consider whether it has the 
resource capacity to handle the large amount of administrative 
oversight and review responsibilities that the Two-Step General Permit 
requires. EPA expects that the resource requirements alone will provide 
sufficient enough reason for a number of permitting authorities to 
choose the Comprehensive General Permit, or to minimize the number of 
terms and conditions it develops for individual MS4 to lessen the 
administrative burden associated with the Two-Step General Permit.
    EPA understands that a permitting authority's decision to adopt the 
Two-Step General Permit will mean that members of the public interested 
in commenting on small MS4 permit conditions may end up needing to 
review not only the draft general permit but also the public notice 
that proposes the additional terms and conditions for each MS4 that 
seeks coverage under the general permit. Some commenters considered 
this a disadvantage because it would be burdensome for the public as 
well. EPA does not see this as sufficient reason for EPA to choose 
Option 1 as the only option and deprive permitting authorities of the 
flexibility to use a two-step procedure. The Two-Step General Permit 
closely resembles, after all, the approach suggested in the EDC remand 
decision, which emphasized the need for permitting authority review and 
public participation procedures prior to the establishment of 
enforceable permit requirements. EPA appreciates the level of interest 
and concern there is among the public for ensuring that MS4 discharges 
are being adequately controlled and are making improvements in water 
quality. EPA notes that any permitting authority that takes on the Two-
Step permitting process will need to be prepared to review and respond 
to any comments that it receives in response to the individual public 
notices it publishes, and will need to provide a rationale for any 
final permit terms and conditions established through the process. 
While states currently using a two-step type of procedure report that 
they receive few, if any public comments about requirements for 
individual MS4s, this will not necessarily hold true for the future. 
With this in mind, EPA found it important to clarify in the final rule 
that permitting authorities may switch to a Comprehensive General 
Permit for the next permit term simply by explaining which option they 
will use to provide coverage under the general permit.

V. How the Two General Permit Options Work

A. Comprehensive General Permit Approach

    Permitting authorities opting to issue Comprehensive General 
Permits must establish the full set of requirements that are deemed 
necessary to meet the MS4 permit standard in Sec.  122.34. (See Sec.  
122.28(d)(1), which requires that ``the Director includes all required 
permit terms and conditions in the general permit.'') The permit must 
therefore include terms and conditions that define what is required to 
meet the MS4 permit standard for the minimum control measures (Sec.  
122.34(b)),

[[Page 89330]]

additional permit terms and conditions based on an approved total 
maximum daily load (TMDL) or other appropriate requirements to protect 
water quality (Sec.  122.34(c)), and requirements to evaluate and 
report on compliance with the permit (Sec.  122.34(d)). As a result, 
the Comprehensive General Permit is no different than other general 
permits in that all applicable effluent limitations and other 
conditions are included within the permit itself, and the NOI is used 
primarily to determine whether a specific MS4 is eligible and to secure 
coverage for that MS4 under the permit subject to its limits and 
conditions.
    While a number of comments expressed support for the proposed 
Option 1 approach (now called the ``Comprehensive General Permit'' in 
the final rule), there were also comments expressing concern about the 
difficulty of putting together a permit that would comprehensively 
establish terms and conditions that would be suitable for and 
achievable by all eligible MS4s, including both traditional and non-
traditional MS4s. Others questioned the ability of permitting 
authorities to write a single permit that would establish uniform 
requirements that would contain appropriate requirements for MS4s that 
have been regulated since the beginning of the Phase II program as well 
as for MS4s brought into the Phase II program by the latest Census, not 
to mention a permit that would be able to establish watershed-specific 
requirements addressing TMDLs. EPA acknowledges the challenge that 
permitting authorities will face in developing and issuing a 
Comprehensive General Permit. Synthesizing the collective understanding 
of MS4 capabilities across an entire state, and translating this into 
effective and achievable permit requirements, will require a greater 
effort up front in developing one of these permits. However, as 
described in further detail below, there are ways of addressing 
challenges such as these, for example, by subcategorizing MS4s by 
experience, size, or other factors, and creating different requirements 
for each subcategory.
    To assist permitting authorities in developing permit conditions 
for a Comprehensive General Permit, EPA has compiled examples of permit 
provisions from existing permits that implement the minimum control 
measures, which are written in a ``clear, specific, and measurable'' 
manner. These examples are included in a document entitled Compendium 
of MS4 Permitting Approaches--Part 1: Six Minimum Control Measure 
Provisions (EPA, 2016). EPA has also included in a separate compendium 
examples of permit provisions to consider when addressing approved 
TMDLs.\3\ A number of commenters requested that EPA continue to provide 
these types of examples to help permitting authorities implement the 
final rule. EPA agrees with these comments, and plans to regularly 
update these compendia and provide other similar types of technical 
assistance.
---------------------------------------------------------------------------

    \3\ See EPA's Compendium of MS4 Permitting Approaches--Part 3: 
Water Quality-Based Requirements (EPA, 2016).
---------------------------------------------------------------------------

    There are a variety of permitting approaches that should be 
considered to address the concerns raised about developing a 
Comprehensive General Permit for the large number and variety of 
regulated MS4s, and which address the array of localized or watershed-
based issues. One approach that may work is to issue two different 
comprehensive general permits or to subdivide the permitted universe, 
establish in the main body of the permit requirements that apply to all 
MS4s, and to provide a separate appendix that establishes MS4-specific 
terms and conditions, which apply uniquely to different categories of 
MS4s. For instance, the state of Washington has issued two MS4 general 
permits, one for the eastern part of the state and the other for the 
western part of the state. Further, the Western Washington Small MS4 
General Permit includes a TMDL appendix, which establishes additional 
permit requirements for specific MS4s based on the watershed in which 
they are located and the waterbody to which they discharge. These 
additional requirements are each translated from the approved TMDL for 
that watershed and the specific waterbody. Another approach that 
permitting authorities can consider is to establish different 
requirements for each minimum control measure for separate sub-
categories of MS4s based on type of MS4 or other factors.\4\ Permits 
could also include separate sections for traditional versus non-
traditional MS4s,\5\ or alternatively separate permits may be issued 
for these different categories of MS4s, as several states are doing for 
departments of transportation MS4s. The main benefit of these different 
approaches is that they provide the permitting authority with a way of 
dividing up the universe of small MS4s into smaller categories, which 
are composed of municipalities with a greater degree of similarity 
among them.
---------------------------------------------------------------------------

    \4\ For example, Colorado's 2016 Small MS4 General Permit 
includes a different set of actions and corresponding deadlines for 
``new permittees'' and ``renewal permittees.'' See Section H, 
https://www.colorado.gov/pacific/sites/default/files/COR090000-PermitCertification.PDF.
    \5\ See California's 2013 Small MS4 General Permit, http://www.waterboards.ca.gov/water_issues/programs/stormwater/docs/phsii2012_5th/order_final.pdf.
---------------------------------------------------------------------------

B. Two-Step General Permit Approach

    Inherent in the Two-Step General Permit approach is the fact that 
the general permit requirements are not on their own adequate to meet 
the MS4 permit standard in Sec.  122.34. In order to fill in the gaps, 
the permitting authority must individually review information submitted 
with each eligible MS4 operator's NOI, and propose additional permit 
requirements to apply to the MS4 individually that, together with the 
base general permit requirements, meet the MS4 permit standard for that 
MS4. These proposed additional permit requirements and the information 
on which it is based is then subject to public notice and comment, and 
the opportunity to request a hearing.
    The first step of the Two-Step General Permit is to develop and 
issue the final small MS4 general permit, or ``base general permit.'' 
The need for the second step arises because the base general permit 
does not include all of the terms and conditions necessary to meet the 
MS4 permit standard, and therefore has left the development of the 
additional requirements to a second process. NOIs for general permits 
using this approach must include more information than NOIs for typical 
general permits.
    The proposed rule described the steps that would be involved in the 
second step of the permitting process in Section VI.B of the preamble 
(81 FR 427, January 6, 2016). EPA requested comment on modifying the 
applicable parts of the NPDES regulations to enable permitting 
authorities to incorporate additional, enforceable elements of the Two-
Step General Permit for individual MS4s following a process that would 
require public notice, the opportunity to request a public hearing, and 
a final permitting determination. The model that EPA proposed for this 
procedure was based on several of the key components of the permitting 
framework adopted for Concentrated Animal Feeding Operations (CAFOs) in 
Sec.  122.23(h). EPA proposed that the new ``Option 2'' process would 
be contained in Sec.  122.33(b)(1), where the NOI requirements for 
small MS4 general permits are located. The proposal described the rule 
provisions as follows:
     At a minimum, the operator must include in the NOI the 
BMPs that it proposes to implement to comply with the permit, the 
measurable goals for each BMP, the person or persons responsible for 
implementing the SWMP, and any additional information

[[Page 89331]]

required in the NOI by the general permit. The Director must review the 
NOI to ensure that it includes adequate information to determine if the 
proposed BMPs, timelines, and any other actions are adequate to reduce 
the discharge of pollutants from the MS4 to the maximum extent 
practicable, to protect water quality, and to satisfy the appropriate 
water quality requirements of the Clean Water Act. When the Director 
finds that additional information is necessary to complete the NOI or 
clarify, modify, or supplement previously submitted material, the 
Director may request such additional information from the MS4 operator.
     If the Director makes a preliminary determination that the 
NOI contains the required information and that the proposed BMPs, 
schedules, and any other actions necessary to reduce the discharge of 
pollutants from the MS4 to the maximum extent practicable, to protect 
water quality, and to satisfy the appropriate water quality 
requirements of the Clean Water Act, the permitting authority must 
notify the public of its proposal to authorize the MS4 to discharge 
under the general permit and, consistent with Sec.  124.10, make 
available for public review and comment and opportunity for public 
hearing the NOI, and the specific BMPs, milestones, and schedules from 
the NOI that the Director proposes to be incorporated into the permit 
as enforceable requirements. The process for submitting public comments 
and hearing requests, and the hearing process if a hearing is granted, 
must follow the procedures applicable to draft permits in Sec. Sec.  
124.11 through 124.13. The permitting authority must respond to 
significant comments received during the comment period, as provided in 
Sec.  124.17, and, if necessary revise the proposed BMPs and/or 
timelines to be included as terms of the permit.
     When the Director authorizes coverage for the MS4 to 
discharge under the general permit, the specific elements identified in 
the NOI are incorporated as terms and conditions of the general permit 
for that MS4. The permitting authority must, consistent with Sec.  
124.15, notify the MS4 operator and inform the public that coverage has 
been authorized and of the elements from the NOI that are incorporated 
as terms and conditions of the general permit applicable to the MS4 (81 
FR at 427-420, January 6, 2016).
    The final rule matches closely with what was proposed as the steps 
necessary to implement Option 2. These steps, which are part of what 
was finalized as the ``Two-Step General Permit,'' are described as 
follows in Sec.  122.28(d)(2):
    (1) The MS4 operator submits the NOI with the information about its 
activities as specified in the general permit.
    (2) The permitting authority reviews the NOI to determine if the 
information is complete and to develop proposed additional permit 
requirements necessary to meet the MS4 permit standard;
    (3) If the permitting authority makes a preliminary determination 
to authorize the small MS4 operator to discharge it must give the 
public notice of and opportunity to comment and request a public 
hearing on the proposed additional permit terms and conditions, and the 
basis for these additional requirements, including the NOI and other 
relevant information submitted by the MS4. These procedures must be 
carried out in accordance with 40 CFR part 124.
    (4) Upon completion of the procedures in step (3), the permitting 
authority may authorize the discharge from the MS4 subject to the 
requirements of the base general permit and the final requirements 
established in the second step. Using this approach, the permitting 
authority may choose to rely fully on the completion of this process to 
establish most of required permit terms and conditions for a particular 
MS4, or it may rely on a hybrid approach wherein some of the necessary 
requirements are established within the base general permit at permit 
issuance while the remaining set of requirements are developed during 
the process of authorizing individual MS4 discharges in the second 
step.
    Where EPA has modified the Two-Step General Permit from the 
proposed rule, it is to clarify a point made in the proposed rule. For 
instance, EPA makes a clarification in the final rule regarding the 
requirements for NOI review in the Two-Step approach. The proposed rule 
explained that the purpose of the permitting authority's review is to 
determine whether the NOI is complete and whether the operator's 
proposed set of BMPs and measurable goals are adequate to meet the MS4 
permit standard. The final rule places emphasis on the fact that the 
information submitted by the MS4 operator with its NOI is for the 
purpose of informing the permitting authority's determination as to 
what ``additional terms and conditions necessary to meet the 
requirements of Sec.  122.34.'' See Sec.  122.28(d)(2)(ii). What the 
operator submits in the NOI is determined by the permitting authority 
when establishing the base general permit. The permitting authority may 
request descriptions of BMPs to be implemented and measurable goals as 
the MS4's proposal for what it considers to be adequate to ``reduce 
pollutants to the maximum extent practicable, protect water quality and 
satisfy the appropriate water quality requirements of the Clean Water 
Act.'' Under the Two-Part General Permit in the final rule, the 
permitting authority reviews this information to craft what it 
determines are the necessary permit terms and conditions to meet this 
MS4 permit standard; these terms and conditions are then subject to the 
permitting procedures for public comment and the opportunity to request 
a hearing. The specific requirements developed out of this process may 
bear a substantial similarity to the operator's proposed BMPs and 
measurable goals, but they also may be modified or further refined 
based on the permitting authority's own determination as to the 
specific requirements that it deems necessary to meet the MS4 permit 
standard. For instance, instead of proposing to adopt all of the BMP 
details that are submitted by the MS4 operator with the NOI as 
enforceable permit requirements, the permitting authority may instead 
develop proposed requirements that focus in on the specific actions and 
milestones that it believes would represent significant progress during 
the permit term. This is a clarification from the proposed rule 
description of the NOI review process, which did not clearly articulate 
the permitting authority's role in reviewing the operator's BMP and 
measurable goal information, or other information requested in the base 
general permit (or fact sheet).
    Another clarification made to the proposed Two-Step process relates 
to the 40 CFR part 124 procedures to follow during the second step. The 
final rule incorporates by reference several specific sections of part 
124. These specific references are consistent with the proposed rule's 
reference generally to part 124, however, in the final rule EPA focused 
in on the specific procedural requirements that ensure that the public 
participation aspects of the Two-Step General Permit are consistent 
with the NPDES regulations. These part 124 requirements are necessary 
because the permitting authority is proposing to add additional terms 
and conditions to the general permit applicable to individual MS4 
permittees. EPA likens these additional terms and conditions to the 
development of a ``draft permit'' under Sec.  124.6, and, as such, 
these draft requirements must undergo minimum permitting procedures for 
public notice,

[[Page 89332]]

comments, and hearings before they are established in final form. The 
following procedural requirements are referenced directly:
Public Notice of Permit Actions and Public Comment Period (Sec.  
124.10, Excluding (c)(2))
--By incorporating these provisions of Sec.  124.10 for the Two-Part 
General Permit, this means that the permitting authority's notice must 
adhere to the following minimum public notice requirements for the 
draft permit conditions:

     The notice must provide a minimum of 30 days for the 
public to provide comment on the draft permit terms and conditions. The 
permitting authority must provide notice to the public at least 30 days 
prior to holding a public hearing on these draft requirements. See 
Sec.  124.10(b).
     The permitting authority must provide public notice to the 
MS4 operator who submitted the NOI, to any relevant agencies or other 
entities referenced in Sec.  124.10(c)(1), and members of the public on 
the permitting authority's mailing list pursuant to Sec.  
124.10(c)(1)(ix). The public notice must also be sent in a manner 
constituting legal notice to the public under state law (if the permit 
program is administered by an approved state), and by using ``any other 
method reasonably calculated to give actual notice'' of the draft terms 
and conditions being added to the permit. See Sec.  124.10(c)(3) and 
(4).
     The public notice must consist of: (1) The name and 
address of the office processing the NOI and draft terms and conditions 
for the MS4 operator; (2) name, address, and telephone number of a 
person from whom interested persons may obtain further information, 
including copies of the draft terms and conditions, statement of basis 
or fact sheet, and the NOI; (3) a brief description of the comment 
procedures required by Sec. Sec.  124.11 and 124.12 and the time and 
place of any hearing that will be held, including a statement of 
procedures to request a hearing, and any other procedures by which the 
public may participate in the final authorization decision; (4) for 
EPA-issued permits, the location of the administrative record required 
by Sec.  124.9, the times when the record will be open for public 
inspection, and a statement that all data submitted by the operator is 
available as part of the administrative record; (5) a general 
description of the location of each discharge point and the name of the 
receiving water; and (6) any additional information considered 
``necessary or proper.'' The public notice of a hearing under Sec.  
124.12 must include: (1) Reference to the date of previous public 
notices relating to the same MS4; (2) date, time, and place of the 
hearing; and (3) a brief description of the nature and purpose of the 
hearing, including the applicable rules and procedures. See Sec.  
124.10(d).
     In addition to the public notice, the permitting authority 
must mail a copy of the fact sheet or statement of basis, the NOI, and 
the draft terms and conditions to the operator and other agencies and 
entities listed in Sec.  124.10(c)(1)(ii) and (iii). See Sec.  
124.10(e).
    A cross-reference to Sec.  124.10(c)(2) is not included in the 
final rule. Although these requirements apply to general permits, EPA 
distinguishes in the Two-Step General Permit between the base general 
permit and the terms and conditions that are added through the second 
permitting step for individual MS4 permittees. The permitting authority 
is required to comply with Sec.  124.10(c)(2) when issuing the general 
permit (i.e., the base general permit). However, because the additional 
MS4-specific terms and conditions are developed in a manner that is 
similar to the way in which terms in an individual permit would be 
developed, EPA concluded that the public notice requirements that apply 
to individual permits are more appropriate for the second step in the 
process of authorizing an MS4 to discharge under a Two-Step General 
Permit. For this reason, EPA does not apply the specific requirements 
of Sec.  124.10(c)(2) to the proposed additional terms and conditions, 
but does apply the other applicable public notice requirements of Sec.  
124.10.
Public Comments and Public Hearings (Sec. Sec.  124.11 and 124.17)
    Consistent with Sec.  124.11, during the public comment period for 
the draft permit conditions, any member of the public may submit 
comments and may request a hearing, if none has already been scheduled. 
The permitting authority is required to consider comments received 
during the comment period in making the decision to authorize the 
discharge. When the permitting authority has made a final determination 
to authorize an individual small MS4 to discharge under the general 
permit, subject to the additional incorporated requirements, it must 
also make available to the public its responses to comments received, 
subject to the applicable requirements of Sec.  124.17.
Public Hearings (Sec.  124.12)
    If the permitting authority holds a public hearing on the draft 
permit conditions, public notice of the hearing must be provided as 
specified in Sec.  124.10 and the hearing must be conducted in 
accordance with the requirements of Sec.  124.12.
Obligation To Raise Issues During the Public Comment Period (Sec.  
124.13)
    During the public comment period for the draft permit conditions, 
commenters are obligated to raise ``all reasonably ascertainable issues 
and submit all reasonably available arguments supporting their 
position'' as required in Sec.  124.13.
    Upon completion of these procedures, in which permitting authority 
review, public notice and comment, and any public hearings take place 
in accordance with the appropriate sections of part 124, the permitting 
authority may authorize the MS4 to discharge under the terms of the 
permit. When authorization occurs, the final terms and conditions that 
were the subject of the public comment and hearing process described 
above become enforceable permit terms and conditions for that MS4 
permittee. No significant changes were made to this step from the 
proposed rule. EPA clarifies that the permitting authority may choose 
the method by which the permittee is notified of the final decision to 
authorize the discharge and the final permit conditions, and by which 
the public is informed of the same. EPA oversight of state-issued NPDES 
permits must also be taken into account. Under the Two-Step General 
Permit, EPA has authority to review all terms and conditions of the 
permit, whether established in a base general permit or in the second 
step that establishes terms and conditions for individual MS4s. See 
Sec.  123.44.

C. Permittee Publication of Public Notice

    A question arose during the development of the proposed rule as to 
whether the MS4 could carry out public notice requirements for the 
Procedural Approach (now referred to as the ``Two-Step General 
Permit''). Several states currently require MS4 permittees to provide 
public notice of individual MS4 NOIs (and their proposed SWMPs in many 
states), including information on how the public can submit comments to 
the state and to request a public hearing. EPA requested comment on 
whether permitting authorities that have relied on the MS4 to place 
public notices in the past should be able to use this

[[Page 89333]]

approach to satisfy their public notice requirements for individual 
NOIs under the Two-Part General Permit. EPA did not propose this 
approach to be adopted as part of the rulemaking effort, and is not 
including in the final rule any specific requirements related to this 
practice.
    EPA received several comments in response to this question. State 
permitting authorities and one statewide MS4 association voiced their 
support for allowing permitting authorities to require MS4 permittees 
to publish public notices, and to establish procedures within the final 
rule to accommodate this practice. One state suggested that if a 
permitting authority is allowed to rely on the MS4 to publish the 
public notice of the NOI, such public notice must follow all of the 
minimum requirements related to the contents and methods of providing 
notice, and any public comments received should be acknowledged and 
considered by the state and documented in the final permit decision. 
Another commenter recommended that the permitting authority be the only 
entity authorized to conduct public notice and comment procedures given 
the differences of opinion that may arise during the process, but 
suggested that as an alternative EPA could allow states to establish 
their own process for these procedures as long as they are consistent 
with the regulations.
    Other commenters were opposed to allowing permitting authorities to 
rely on the MS4 permittee to carry out applicable public participation 
requirements. These commenters emphasized the clear requirement in the 
regulations for the permitting authority to conduct these activities, 
pointing to the fact that the NOI should be treated no differently than 
any permit application. These comments noted that members of the public 
wishing to review and potentially submit comments and request a hearing 
on NOIs should have a centralized place to refer to for reviewing 
public notices of NOIs, and feared that allowing a decentralized 
approach where the MS4 handles the public notice would be unlikely to 
reach the intended audience. Another point made was that in keeping 
with the permitting authority's responsibility to review and determine 
the adequacy of each MS4's NOI, the public notice and comment 
proceedings that are associated with the NOIs should be managed by the 
same entity. These commenters also questioned whether delegating these 
responsibilities to the MS4 made sense given the fact that it is the 
state that is most familiar with how to meet its own administrative 
rules and protocols, and that is best equipped from a technical and 
physical capacity standpoint to receive and process comments, many of 
which will be submitted electronically, and potentially hold hearings. 
Additionally, some commenters worried about the effect of placing more 
burden on the municipalities.
    The final rule does not address the issue of whether the permitting 
authority may rely on its MS4 permittees to carry out public notice 
responsibilities on its behalf in the final rule, but instead 
incorporates by reference the existing set of requirements that apply 
to all draft permits in Sec.  124.10. As to whether permitting 
authorities may rely on the permittee to publish the public notice, it 
is EPA's view that they may do so as long as the public notice meets 
all of the applicable requirements in Sec.  124.10. The public notice 
responsibilities in the NPDES regulations apply to the permitting 
authority, therefore these are requirements that it must ensure are 
met. The state must conduct any public hearing, consider the comments 
received, respond to them, and make decisions as to what changes are 
necessary as a result of the comments.

VI. Requirements for Permit Terms and Conditions

    EPA proposed several clarifying changes to the regulatory language 
in Sec.  122.34 regarding the expression of permit limits for small 
MS4s. First, EPA proposed to clarify that the permitting authority is 
responsible for establishing permit requirements that meet the MS4 
permit standard. Second, proposed changes would address issues of 
clarity in permit terms and the different ways in which permit 
requirements can be expressed. Third, the proposal would reinforce the 
expectation that the MS4 standard must be independently met for each 5-
year permit term. Each of these categories of regulatory changes is 
discussed below. The final rule incorporates these proposed changes, 
with some modification to the proposed rule language in response to 
comments and for additional clarity.

A. Permitting Authority as the Ultimate Decision-Maker

    To directly address the clear message from the Ninth Circuit remand 
that the regulations need to preclude the small MS4 from determining on 
its own what actions are sufficient to meet the MS4 standard ``to 
reduce pollutants to the maximum extent practicable, protect water 
quality and satisfy the appropriate water quality requirements of the 
CWA,'' EPA proposed revisions throughout Sec.  122.34 to make it clear 
that the permitting authority is responsible for establishing permit 
requirements that meet the standard. For this reason, EPA proposed to 
shift the focus of the requirements in Sec.  122.34 to the ``NPDES 
permitting authority'' rather than the regulated small MS4. Similarly, 
the proposed rule modified the guidance provisions to focus on 
permitting authorities as well as MS4s. In most cases, this meant 
substituting the term ``NPDES permitting authority'' for ``you'' or 
``your'' (referring to the regulated small MS4) and referring to the 
regulated small MS4 as the ``operator.'' A related change tied to the 
remand was the proposed deletion of the sentence ``Implementation of 
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 constitutes 
compliance with the standard of reducing pollutants to the `maximum 
extent practicable.' '' The Ninth Circuit court specifically raised 
this sentence as a demonstration that ``nothing in the Phase II 
regulations requires that NPDES permitting authorities review these 
Minimum Measures to ensure that the measures that any given operator of 
a small MS4 has decided to undertake will in fact reduce discharges to 
the maximum extent practicable.'' See EDC, 344 F.3d at 832, 854. The 
proposal to remove this sentence, combined with the other changes, 
would reinforce the fact that the permitting authority is the entity 
responsible for establishing the terms and conditions of the permit 
necessary to meet the MS4 permit standard. These changes also would 
shift the focus of Sec.  122.34 to the development of permit 
requirements and away from the identification of what the MS4 should 
include in its SWMP.
    EPA received a relatively small number of comments responding to 
these proposed changes. Some commenters expressed a preference to 
continue to have the MS4 in charge of defining the MS4 standard for 
itself or requested that the deleted sentence (``Implementation of best 
management practices consistent with the provisions of the stormwater 
management plan. . . .'') be retained. Other commenters pointed out 
that the proposed changes should apply to all regulated small MS4 
permits, regardless of the type of permit (e.g., Traditional General 
Permit, Procedural General Permit, or individual), and requested that 
EPA clarify this in the final rule.
    The final rule retains the proposed rule changes that emphasize 
that it is

[[Page 89334]]

the permitting authority with the ultimate authority to determine what 
small MS4s must do to meet the MS4 permit standard. These changes 
respond to the Ninth Circuit's finding in the EDC decision that the 
Phase II rule did not, contrary to the CWA, require the permitting 
authority to determine whether the MS4 permittee's proposed program 
would in fact meet the MS4 permit standard. Indeed, while the EDC 
decision specifically addressed the general permit process, the 
underlying rationale for the court's rejection of the general 
permitting process--the failure of the rule to ensure that the 
permitting authority, not the permittee, determine what is needed to 
meet the standard applicable to MS4 permits under the CWA--applies 
whether the MS4 permit is a general permit or an individual permit. 
Therefore, EPA is amending Sec.  122.34 to apply to any permit issued 
to regulated small MS4s (except those small MS4s applying for an 
individual permit under Sec.  122.33(b)(2)(ii)).
    These changes, including the deletion of the sentence 
``Implementation of 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 constitutes compliance with the standard of reducing 
pollutants to the maximum extent practicable,'' more clearly establish 
the permit as the enforceable document, not the stormwater management 
program or what has been described in the SWMP. (See VI.E of this 
preamble for a discussion of the function of the ``SWMP'' under EPA's 
small MS4 regulation.)

B. ``Clear, Specific, and Measurable'' Permit Requirements

    EPA also proposed rule revisions related to the expression of 
permit terms. Consistent with current EPA guidance, the proposed rule 
specified that permit requirements be expressed in ``clear, specific, 
and measurable'' terms. The preamble to the proposed rule contained a 
detailed discussion about what ``clear, specific, and measurable'' 
meant and EPA put in the rulemaking docket a draft compendium of 
example language from actual permits to further illustrate the meaning 
of ``clear specific, and measurable.'' See updated permit compendium in 
the final rule docket, MS4 Compendium of Permitting Approaches: Part 1: 
Six Minimum Control Measures (EPA, 2016). EPA also included in the 
preamble to the proposed rule, examples of permit language that do not 
appear to have the type of detail that would be needed.
    In addition to specifying that permit terms and conditions must be 
``clear, specific, and measurable,'' the proposed rule text clarified 
that effluent limitations may be in the form of BMPs, and provided non-
exclusive examples of how these BMP requirements may appear in the 
permit, such as in the form of specific tasks, BMP design requirements, 
performance requirements or benchmarks, schedules for implementation 
and maintenance, and the frequency of actions. This language was 
proposed to substitute for existing language that states: ``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 . . . and 
to protect water quality.''
    EPA also proposed to delete a related guidance paragraph in Sec.  
123.34(e)(2). As explained in the proposed rule preamble, the guidance 
no longer reflects current practice.\6\ The deletion of this paragraph 
is also consistent with EPA guidance developed since 1999 regarding the 
types of requirements that are recommended for MS4 permits.\7\
---------------------------------------------------------------------------

    \6\ See EPA's Compendium of MS4 Permitting Approaches--Part 3: 
Water Quality-Based Requirements (EPA, 2016).
    \7\ See EPA memorandum entitled Revisions to the November 22, 
2002 Memorandum ``Establishing Total Maximum Daily Load (TMDL) 
Wasteload Allocations (WLAs) for Storm Water Sources and NPDES 
Permit Requirements Based on Those WLAs,'' November 26, 2014.
---------------------------------------------------------------------------

    EPA received numerous comments on these proposed changes. For the 
most part, commenters from all stakeholder groups expressed approval 
for the ``clear, specific, and measurable'' language. However, a 
variety of commenters read the deletion of ``narrative'' to mean that 
numeric effluent limitations (e.g., end-of-pipe pollutant concentration 
limitations) would be required in small MS4 permits or that 
``narrative'' limits would no longer be acceptable. As stated in the 
preamble, EPA did not intend to make substantive changes to Sec.  
122.34 beyond what would be required to address the court remand. The 
term ``narrative'' was proposed to be deleted to recognize that other 
expressions of effluent limitations may be appropriate, not to preclude 
the use of narrative effluent limitations. To avoid misinterpretation 
of the regulation, however, the final rule instead describes 
appropriate requirements as being ``narrative, numeric, or other 
requirements.'' EPA intends for the final rule text to more broadly 
encompass the various types of controls for stormwater discharges that 
could be required of small MS4s.
    Regarding the insertion of ``clear, specific, and measurable'' to 
describe permit requirements, most commenters perceived benefits for 
permittees, permitting authorities, and the public, particularly 
because it will be more clearly stated in the permit what is expected 
for compliance. Some commenters observed that ``clear, specific, and 
measurable'' terms would enable better enforcement of the MS4 permit 
requirements, and would provide a more effective path to improved water 
quality. Some small MS4s themselves pointed out that greater certainty 
in permit terms could put them into a better position to plan and to 
garner local political support and critical funding for their programs. 
Other MS4s, however, voiced uncertainty as to how the terms ``clear, 
specific, and measurable'' would be implemented and what would actually 
be required of them by their permits and concern that their flexibility 
would be unduly restricted. Some commenters also suggested that 
regulatory provisions associated with the expression of permit limits, 
while discussed in the preamble to the proposed rule in the context of 
Option 1, should apply regardless of the option chosen. Several groups 
requested that ``clear, specific, and measurable'' be changed instead 
to ``focused, flexible, and effective.'' Other commenters requested 
that ``enforceable'' be added to this phrase. Some groups representing 
MS4 permittees and industry expressed concern that ``measurable'' meant 
that permits would now contain water quality monitoring requirements or 
that ``measurable,'' together with the deletion of ``narrative'' to 
describe effluent limitations, meant that EPA was opening the door for 
small MS4 permits to now be required to contain numeric effluent 
limitations, e.g., end-of-pipe pollutant concentration limits for each 
outfall in the system. A concern that ``clear, specific, and 
measurable'' would preclude or reduce MS4 flexibility to change program 
elements as a program encountered successes or failures (i.e., 
adaptations made during the permit term or to meet MS4-specific 
circumstances) was also stated as a disadvantage associated with this 
language. In a related vein, several commenters warned against permit 
terms that were too specific and left very little discretion to the 
MS4. Some commenters requested that the regulatory text indicate that 
the expectation that permit requirements be ``clear, specific, and 
measurable'' apply

[[Page 89335]]

to each BMP and other requirements in the permit, and accompanied by 
reporting requirements that related to measurable requirements, rather 
than measureable goals as in the current regulation.
    The final rule retains the proposed rule requirement for ``clear, 
specific, and measurable'' permit terms and conditions. Accompanying 
the promulgation of this requirement, EPA is also publishing an updated 
version of its compendium of permit examples from the proposed rule 
(i.e., MS4 Compendium of Permitting Approaches: Part 1: Six Minimum 
Control Measures (EPA, 2016)), which includes provisions from EPA and 
state MS4 general permits that provide examples of clear, specific, and 
measurable requirements. EPA also retains the examples provided in the 
proposed rule preamble of permit language that would generally not 
qualify as clear, specific, and measurable, which is included here, 
with minor edits:
     Permit provisions that simply copy the language of the 
Phase II regulations verbatim without providing further detail on the 
level of effort required or that do not include the minimum actions 
that must be carried out during the permit term. For instance, where a 
permit includes the language in Sec.  122.34(b)(4)(ii)(B) (i.e., 
requiring ``. . . construction site operators to implement appropriate 
erosion and sediment control best management practices'') and does not 
provide further details on the minimum set of accepted practices, the 
requirement would not provide clear, specific, and measurable 
requirements within the intended meaning of the proposed Traditional 
General Permit Approach. The same would also be true if the permit just 
copies the language from the other minimum control measure provisions 
in Sec.  122.34(b) without further detailing the particular actions and 
schedules that must be achieved during the permit term.
     Permit requirements that include ``caveat'' language, such 
as ``if feasible,'' ``if practicable,'' ``to the maximum extent 
practicable,'' and ``as necessary'' or ``as appropriate'' unless 
defined. Without defining parameters for such terms (for example, 
``infeasible'' means ``not technologically possible or not economically 
practicable and achievable in light of best industry practices''), this 
type of language creates uncertainty as to what specific actions the 
permittee is expected to take, and is therefore difficult to comply 
with and assess compliance.
     Permit provisions that preface the requirement with non-
mandatory words, such as ``should'' or ``the permittee is encouraged to 
. . . .'' This type of permit language makes it difficult to assess 
compliance since it is ultimately left to the judgment of the permittee 
as to whether it will comply. EPA notes that the Phase II regulations 
include ``guidance'' in places (e.g., Sec.  122.34(b)(1)(ii), 
(b)(2)(ii), and (b)(3)(iv)) that suggest practices for adoption by MS4s 
and within permits, but does not mandate that they be adopted. This 
guidance language is intended for permitting authorities to consider in 
establishing their permit requirements. Permitting authorities may find 
it helpful to their permittees to include guidance language within 
their permits in order to provide suggestions to their permittees, and 
it may be included. However, guidance language phrased as suggested 
guidelines would not qualify as an enforceable permit requirement under 
the final rule.
     Permit requirements that lack a measurable component. For 
instance, permit language implementing the construction minimum control 
measure that requires inspections ``at a frequency determined by the 
permittee'' based on a number of factors. This type of provision 
includes no minimum frequency that can be used to measure adequacy and, 
therefore, would not constitute a measurable requirement for the 
purposes of the rule.
     Provisions that require the development of a plan to 
implement one of the minimum control measures, but does not include 
details on the minimum contents or requirements for the plan, or the 
required outcomes, deadlines, and corresponding milestones. For 
example, permit language requiring the MS4 to develop a plan to 
implement the public education minimum control measure, which informs 
the public about steps they can take to reduce stormwater pollution. 
The requirement leaves all of the decisions on what specific actions 
will be taken during the permit term to comply with this provision to 
the MS4 permittee, thus enabling almost any type of activity, no matter 
how minor or insubstantial, to be considered in compliance with the 
permit.
    Regarding the suggestion to add ``enforceable,'' in EPA's view, 
clear, specific and measurable terms and conditions together define 
what makes a permit requirement enforceable. Therefore, adding 
``enforceable'' to this list of attributes would not add to the 
enforceability of permit terms and conditions. With respect to the 
suggestion to replace ``clear, specific, and measurable'' with 
``focused, flexible, and effective,'' EPA clarifies that nothing in the 
final rule prevents a permitting authority from developing permit 
requirements that are focused, flexible, and effective, as long as 
those requirements are articulated in clear, specific, and measurable 
terms.
    The word ``specific'' also generated a number of comments. EPA 
proposed ``specific'' to indicate what activities an MS4 would be 
required to undertake to implement the various required elements of the 
minimum control measures described in Sec.  122.34(b) or to achieve a 
specified level of performance that would constitute compliance with 
the permit. Some commenters advocated for more specificity in permits, 
while others cautioned against too much specificity. Still others 
simply asked for more guidance about how ``specific'' a general permit 
would need to be. EPA intends for ``specific'' to mean that a 
permitting authority describes in enough in detail that an MS4 can 
determine from permit terms and conditions what activity they need to 
undertake, when or how often they must undertake it, and whether they 
must undertake it in a particular way. It must be clear what does and 
does not constitute compliance. As noted in the preamble to the 
proposed regulation, a verbatim repetition of the minimum control 
measures described in Sec.  122.34(b) does not provide a sufficient 
level of specificity.
    At the same time, EPA intends for the permitting authority to 
retain discretion in determining how much specificity is needed for 
different permit requirements. The level of specificity may change over 
time, for example, to reflect a more robust understanding of more 
effective stormwater management controls or to meet specific state 
needs. There is a wide range of ways to implement a stormwater 
management program and the permitting authority will need to determine 
how to craft permit terms and conditions that establish clear 
expectations that implement the various requirements in Sec.  122.34 in 
specific terms, and this can be done while also providing flexibility 
to MS4s to choose how they will comply with permit terms. For example, 
a requirement to ``Develop a public education program about the effect 
of stormwater on water quality'' is not a sufficiently specific permit 
requirement. To provide greater specificity, some permitting 
authorities have provided a menu of specific public education 
activities in the permit, and the MS4 must choose from among them 
indicating how they will comply with the permit. For a hypothetical 
example, the permit might require that the MS4

[[Page 89336]]

undertake four public education activities each year from a list of 
activities specified in the permit and include at least one each year 
that is directed at students in all public schools within the MS4 area, 
using an existing or new curriculum, to explain ways in which 
stormwater can harm water quality. In this hypothetical example, the 
MS4 has the flexibility to choose from a list of activities the 
permitting authority has determined are acceptable and, for the 
required activity involving public schools, and to choose a curriculum 
that already exists or develop a new one that is tailored to specific 
stormwater problems in the community. The specific (clear and 
measurable) permit terms are:
    (1) To undertake four education activities per year from a 
specified list of allowable activities; and (2) to ensure that at least 
one of the activities involves education about stormwater at all public 
schools. Compliance would be completion of four activities each year. 
One type of activity is specified in the permit, but the MS4 can choose 
the audience, the medium, and the specific message for the other three 
required activities. Even within the more specific requirement related 
to public schools, the permittee would have discretion in determining 
the form and content of the curriculum. In this hypothetical example, 
the permit contained requirements of varying specificity, but the 
boundaries of what constitutes compliance is readily apparent and it is 
clear what the MS4 must do and the timeframe for compliance.
    What is not specified in a permit implicitly defines the level of 
discretion the MS4 has to meet the terms and conditions of the permit. 
EPA recognizes that it can be useful for MS4s to retain the ability to 
change specific stormwater control activities during the term of the 
permit without the need to seek a permit modification for every change. 
In the above hypothetical example, if the MS4 finds that, after the 
second year of the permit term that the curriculum it chose was not 
effective, it could develop a different one or choose another 
curriculum, e.g., one that involves field work rather than just 
classroom instruction. The change in curriculum would not require a 
permit modification because the permit did not specify the particular 
curriculum that must be used. The permit terms in this case also 
provide the public with sufficient information to offer comments on the 
activities available, their number and frequency, and the degree of 
discretion left to the MS4. EPA emphasizes that it is not necessary 
that every detail be spelled out in a permit as an enforceable 
requirement under the CWA. See further discussion of the considerations 
related to permit modifications in Section VI.E.
    In the above hypothetical example, the permitting authority could 
have chosen more specific terms. For example, it could have required 
that the MS4s undertake activities A and B in the first year, 
activities C and D in the second year, and so on. It could have 
specified the medium to be used, e.g., television or social media and 
each of the audiences that must be addressed in the outreach plan 
(e.g., businesses, commercial establishments, developers). EPA notes 
that increased specificity does not necessarily mean that the permit is 
more stringent. It does, however, decrease the flexibility left to the 
MS4 to determine how to meet the permit requirement. Conversely, the 
permitting authority in the above hypothetical example could have been 
less specific, for instance, by not requiring one activity each year to 
be carried out in public schools. Permitting authorities need to 
consider what level of specificity is appropriate based on the 
particular factors at play in their permit area. The level of 
specificity may change over time, and should be evaluated in each 
successive permit. There may be differences of opinion about the degree 
of specificity needed, but that call would be open for public comment 
on the general permit or, if the Two-Part General Permit is used, on 
the public notice for the additional terms and conditions applicable to 
individual MS4s.
    Another example of how the permit can provide greater specificity 
is to include distinct requirements based on type of MS4. For example, 
Section 3.2.1.3 of the Arkansas general permit states: ``The stormwater 
public education and outreach program shall include more than one 
mechanism and target at least five different stormwater themes or 
messages over the permit term. At a minimum, at least one theme or 
message shall be targeted to the land development community. For non-
traditional MS4s, the land development community refers to landscaping 
and construction contractors working within its boundaries (emphasis 
added). The stormwater public education and outreach program shall 
reach at least 50 percent of the population over the permit term.'' 
Here, the permitting authority further specifies the target audience as 
applied to non-traditional MS4s.
    Alternatively, specific permit terms could be established uniformly 
for all eligible small MS4s, which would have the benefit of leveling 
the playing field among small MS4s. The final rule gives permitting 
authorities some discretion to decide how much specificity to include 
in the permit and how much flexibility to leave to the MS4 when working 
out the details of how it will comply with permit terms. The public 
would have an opportunity to provide comments on such preliminary 
decisions about the level of specificity in permit terms and conditions 
needed during the public comment period on the general permit or on the 
second step of a Two-Step General Permit, or in some cases on both.
    EPA also received comments on the term ``measurable.'' In response 
to comments, EPA clarifies that ``measurable'' does not necessarily 
mean that water quality monitoring must be required in every instance 
to assess compliance. Likewise, it does not mean that numeric, end-of-
pipe pollutant concentrations or loadings must be included in permits. 
While these examples do represent a type of measurable requirement, 
they are not required to be in every MS4 permit. Rather, the term 
``measurable'' means that the permit requirement has been articulated 
in such a way that compliance with it can be assessed in a 
straightforward manner. For example, a permit provision that requires 
inspections at construction sites to be conducted once per week until 
final stabilization has been verified is a measurable requirement. To 
help assess compliance, the permit should also contain a way to track 
whether the requirement has been met, such as requiring the permittee 
to keep a log of each inspection, including the date and any relevant 
findings. On the other hand, a requirement that construction sites be 
inspected ``after storms as needed'' would not be a measurable 
requirement. For this requirement, the permittee would have to 
determine whether a ``storm'' occurred and, if so, whether an 
inspection was called for, both of which are determinations that are 
left completely up to the permittee to determine. A permitting 
authority could not easily assess that this requirement was or was not 
met.
    Like the term ``measurable,'' ``numeric'' is another term that is 
often misunderstood to require numeric end-of-pipe concentration and/or 
mass pollutant limitations similar to those that commonly appear in 
permits issued to other types of point source dischargers (e.g., 
industrial process discharges and discharges from sewage treatment 
plants). EPA intends numeric to be read more broadly to include an 
objective, quantifiable value related to the performance of different

[[Page 89337]]

requirements for small MS4 programs. For example, ``numeric'' can refer 
to the number or frequency of required actions to be taken such as a 
requirement to ``clean 25% of the catch basins in your service area on 
a yearly basis'' or ``complete 6 of 10 public education events 
specified in the following table on an annual basis.'' ``Numeric'' can 
also refer to a specified numeric performance levels, such as a 
retention standard for post-construction discharges from new 
development and re-development sites, e.g., ``The first inch of any 
precipitation must be retained on-site.'' Another example of a numeric 
performance requirement is exemplified by the following provision from 
the 2016 Vermont Small MS4 general permit: ``The control measure(s) is 
designed to treat at a minimum the 80th percentile storm event. The 
control measure(s) shall be designed to treat stormwater runoff in a 
manner expected to reduce the event mean concentration of total 
suspended solids (TSS) to a median value of 30 mg/L or less.'' See 
Section E.4.a.iv.B.
    A commenter requested that EPA require measurable conditions for 
each BMP. EPA interprets this comment as recommending that permit terms 
implementing the minimum control measures, which are often articulated 
as narrative requirements, each be expressed in a measurable manner. 
EPA agrees that permit terms and conditions that are established to 
satisfy a minimum control measure need to have measurable (as well as 
clear and specific) requirements associated with them that assist the 
MS4 and permitting authority in determining whether required elements 
of the minimum control measures or other permit terms and conditions 
have been achieved.
    In the final rule, EPA has decided to substitute the term ``terms 
and conditions'' for ``effluent limitations'' because stakeholders 
asserted the term effluent limitations connotes end-of-pipe numeric 
limits even though EPA is not insisting that these types of limitations 
be used. In sum, EPA intends that terms and conditions are a type of 
effluent limitations and that they are interchangeable and both mean 
permit requirements. As defined in the Clean Water Act, ``effluent 
limitation'' means ``any restriction established by a State or the 
Administrator on quantities, rates, and concentrations of chemical, 
physical, biological, and other constituents which are discharged from 
point sources into navigable waters, the waters of the contiguous zone, 
or the ocean, including schedules of compliance.'' See CWA section 
502(11). The Clean Water Act also authorizes inclusion of permit 
conditions. See CWA section 402(a)(1) and (2). Both ``effluent 
limitations or other limitations'' under section 301 of the Act and 
``any permit or condition thereof'' are an enforceable ``effluent 
standard or limitation'' under the citizen suit provision, section 
505(f) of the Clean Water Act, and the general enforcement provisions, 
section 309 of the Act. EPA uses these terms interchangeably when 
referring to actions designed to reduce pollutant discharges. For the 
purposes of this final rule, changing the small MS4 regulations to 
refer instead to ``terms and conditions'' is intended to be read as 
consistent with the meaning of ``effluent limitations'' in the 
regulations and CWA.

C. Narrative, Numeric, and Other Forms of Permit Requirements

    As explained in the previous section of this preamble, EPA has 
clarified that permit limits need not be expressed only as 
``narrative'' limits but can consist of ``narrative, numeric, and other 
types'' of permit requirements. The final rule provides a non-exclusive 
list of the types of narrative, numeric, and other types of terms and 
conditions that would be appropriate for small MS4 permits by stating 
that allowable terms and conditions could include, among other things 
``implementation of specific tasks or best management practices (BMPs), 
BMP design requirements, performance requirements, adaptive management 
requirements, schedules for implementation and maintenance, and 
frequency of actions.'' These examples are the same as those proposed, 
with the exception of removing the term ``benchmarks'' and adding in 
its place, ``adaptive management requirements.'' Several commenters 
noted that the term ``benchmarks'' is used in EPA's and many states' 
Multi-Sector General Permit for Stormwater Discharges Associated with 
Industrial Activity, or ``MSGP,'' to mean numeric pollutant 
concentration levels that must be measured, and if exceeded, trigger 
further monitoring or corrective action requirements. To eliminate any 
confusion, the commenters requested that a different term be used. EPA 
did not intend ``benchmarks'' to be precisely defined, but instead to 
generally refer to various types of identified measurements of 
performance and to undertake different actions or controls if 
performance is not at the measured level. To avoid confusion, EPA is 
replacing ``benchmarks'' with the phrase ``adaptive management 
requirements,'' since adaptive management approaches are used widely in 
the MS4 communities. Adaptive management enables MS4 permittees to 
iteratively improve their stormwater control strategies and practices 
as they implement their programs and learn from experience to better 
control pollutant discharges.
    With respect to establishing permit terms and conditions, use of 
the term ``BMP'' in Sec.  122.34(a) is intended to take on a broad 
meaning and could encompass both the enforceable terms and conditions 
of the permit as well as particular activities and practices selected 
by the permittee that will be undertaken to meet the permit 
requirements but that are not themselves enforceable. BMPs are defined 
in Sec.  122.2. The term is defined to include schedules of activities, 
prohibitions of practices, maintenance procedures, and other management 
practices to prevent or reduce water pollution. The regulatory 
definition also includes treatment requirements, operating procedures, 
and practices to control runoff, spillage or leads, sludge, or waste 
disposal, or drainage from raw material storages as BMPs. The defined 
regulatory term was developed to describe requirements to undertake 
certain activities to reduce the amount of pollutants discharged that 
are not described as numeric pollutant effluent discharge limitations 
or represent specific performance levels. See Sec.  122.44(k). EPA 
intends, in Sec.  122.34(a) of the final rule, to use BMP in its 
broadest sense to refer to any type of structural or non-structural 
practice or activity undertaken by the MS4 in the course of 
implementing its SWMP. Whether a BMP is an enforceable requirement 
depends on whether the permitting authority has established it as a 
term and condition of the permit. The term BMP in Sec.  122.34(a) is 
not intended to be used interchangeably with enforceable requirements 
necessary to demonstrate compliance with the permit. Instead, it refers 
to any type of activity that is used to reduce pollutants in the MS4's 
discharge. This distinction is important because, as discussed 
elsewhere in the preamble, some BMPs may be changed without first 
requiring a permit modification, but only if they are not included as 
enforceable requirements of the permit.

D. Considerations in Developing Requirements for Successive Permits

    A final change to Sec.  122.34(a) that EPA proposed was to reflect 
the iterative nature of the MS4 permit standard and require that what 
is considered adequate to meet the MS4 permit standard, including what 
constitutes ``maximum

[[Page 89338]]

extent practicable,'' needs to be determined for each new permit term. 
The final rule provision is retained from the proposed rule, which 
requires that for each successive permit, the permitting authority must 
include terms and conditions that meet the requirements of Sec.  122.34 
based on its evaluation of the current permit requirements, record of 
permittee compliance and program implementation progress, current water 
quality conditions, and other relevant information. The preamble to the 
proposed rule explained: ``A foundational principle of MS4 permits is 
that from permit term to permit term iterative progress will be made 
towards meeting water quality objectives, and that adjustments in the 
form of modified permit requirements will be made where necessary to 
reflect current water quality conditions, BMP effectiveness, and other 
current relevant information.'' (81 FR 422, Jan. 6, 2015). The preamble 
further listed possible sources to inform the evaluation such as past 
annual reports, current SWMP documents, audit reports, receiving water 
monitoring results, existing permit requirements, and applicable TMDLs.
    EPA received numerous comments on the language regarding the 
development of each successive permit. One commenter asked EPA to 
include additional factors in the rule text that would need to be 
considered when developing a new small MS4 permit, including impairment 
status of the waterbody and applicable TMDLs, and permits developed by 
other states. Other factors requested to be included in the text were 
discussed in the preamble to the proposed rule include: how long the 
MS4 has been permitted, the degree of progress made by the small MS4 
permittees as a whole and by individual MS4s, the reasons for any lack 
of progress, and the capability of these MS4s to achieve more focused 
requirements. Another commenter stated that while it is appropriate to 
re-examine the permit requirements for continued applicability and 
effectiveness, EPA should not presume that successive permits would 
always require more stringent requirements. Instead, the commenter 
continues, the permit could only require adjustments of existing BMPs. 
EPA also received general comments about the nature of ``maximum extent 
practicable'' that were reflected in comments concerning the new 
language about successive permits.
    EPA has retained substantially the same text as it proposed. In 
Sec.  122.34(a)(2), permitting authorities are required to revisit 
permit terms and conditions during the permit issuance process, and to 
make any necessary changes in order to ensure that the subsequent 
permit continues to meet the MS4 permit standard. Thus, in advance of 
issuing any new small MS4 general permit, the permitting authority will 
need to review, among other things, available information on the 
relative progress made by permittees to meet any applicable milestones 
under the expiring permit, compliance problems that may have arisen, 
the effectiveness of the required activities and selected BMPs under 
the existing permit, and any improvements or degradation in water 
quality. This requirement applies regardless of the type of permit 
(individual or general) or the specific general permitting approach 
that is chosen by the permitting authority.
    As commenters pointed out, there are other factors that the 
permitting authority can consider in establishing the permit 
requirements in successive permits that meet the MS4 permit standard. 
This provision, however, is intended to state a general requirement to 
update each permit and therefore uses broader, more general terms 
rather than trying to name all of the factors and considerations that 
may bear on the development of specific permit terms and conditions in 
successive permits. The crux of this requirement is that permitting 
authorities cannot simply reissue the same permit term after term 
without considering whether more progress can or should be made to meet 
water quality objectives or that other changes to the permit are in 
order. As is the case with NPDES permits generally, the permitting 
authority considers anew what is appropriate each time it issues a 
permit. For example, new stormwater management techniques may have 
arisen or become affordable during the expiring permit term that should 
be taken into consideration. The factors identified by commenters and 
discussed in the proposed rule preamble are all relevant 
considerations. First and foremost, as noted by one commenter, ``the 
understanding of which pollution control measures and standards are the 
most effective and practicable can evolve, requiring corresponding 
changes in permit conditions to meet the `MEP' standard.'' Likewise, 
the stressors affecting water quality can change over time. The water 
quality of the receiving water and any applicable TMDLs are factors 
that should be considered, but additional rule language is unnecessary 
since these factors are already encompassed within the final rule's 
reference to ``current water quality conditions.'' (Also see, Sec.  
122.34(c) which requires permit conditions based on applicable TMDLs.) 
How long an MS4 has been permitted also could point to establishing 
different or ``tiered'' requirements based on whether the MS4 is on its 
third or fourth permit with a mature program or is a newly regulated 
MS4 that must build its program ``from scratch.'' Using broad, general 
terms to describe considerations that may change over time provides 
critical flexibility, while ensuring that the assessment of current 
circumstances and information is done.
    Contrary to the assumption that EPA presumes that each successive 
permit will contain more stringent conditions for each permit 
requirement, EPA recognizes that this is not the case. It is possible 
that some permit conditions remain relatively static in a successive 
permit. If a permit, however, contained a less stringent requirement or 
less specific language than had been included in the previous permit 
this would require an explanation, backed by empirical evidence or 
other objective rationale that the requirement was no longer 
practicable or that another approach is more effective, and that making 
this requirement less stringent would not result in greater levels of 
pollutant discharges. This would be especially true where the MS4 is 
discharging pollutants to an impaired water due to an excess of those 
pollutants. How quickly pollutants must be reduced and which elements 
of a program need greater or less emphasis are certainly considerations 
that an MS4 (or others) can raise during the comment period. Likewise, 
an MS4 that is seeking an individual permit or coverage under a Two-
Step General Permit, can propose BMPs or other management measures to 
the permitting authority that reflect its judgment about how and to 
what extent permit terms and conditions should change or stay the same.
    One commenter asserted that EPA should require consideration of 
other states' permits in determining permit conditions. The commenter 
reasoned that if one state adopts a requirement that achieves greater 
pollutant reduction than another state, the other state should have to 
adopt the more effective permit condition or explain why it is not 
practicable for MS4s in its state. The commenter also noted that EPA 
has taken similar positions with respect to technology-based 
requirements for other types of discharges. Finally, the commenter 
urged EPA to continue to provide and update examples of permit 
conditions developed by various states. EPA does not find it necessary 
to expressly require the rule to compel

[[Page 89339]]

permitting authorities to consider the terms and conditions of permits 
in other jurisdictions in determining the need to modify their own 
permits. Each permitting authority is required to issue permits that 
independently meet the MS4 permit standard based on an evaluation of, 
among other things, how well the past permit conditions worked and what 
more can be reasonably achieved in the next permit term. This 
evaluation involves factors that are necessarily unique to the 
permitting jurisdiction. Furthermore, the factors that led to one state 
permit's adoption of stricter requirements than another state makes a 
straightforward analysis between the two difficult, and potentially 
misleading. While EPA does not agree that permitting authorities should 
be required to consider other state permits, EPA agrees that much can 
be learned from other states' permitting approaches and it may be a 
relevant factor to consider in a particular permitting proceeding.
    Commenters suggest that EPA's publication of its MS4 permit 
compendia (EPA, 2016), as well as EPA's MS4 Permit Improvement Guide 
(EPA, 2010), providing examples of permit provisions that are written 
in a ``clear, specific, and measurable'' manner, makes it easier for 
permitting authorities to write better permits. EPA agrees with 
commenters that sharing examples among states is an effective tool for 
developing permit conditions and has updated the compendium of state 
practices to accompany the final rule for this very reason. See 
Compendium of MS4 Permitting Approaches--Part 1: Six Minimum Control 
Measures (EPA, 2016) in the final rule docket.\8\ EPA plans to 
facilitate information transfer on a continuing basis.
---------------------------------------------------------------------------

    \8\ This document, and two additional compendia, Compendium of 
MS4 Permitting Approaches--Part 2: Post Construction Standards (EPA, 
2016) and Compendium of MS4 Permitting Approaches--Part 3: Water 
Quality-Based Requirements (EPA, 2016), will be available at EPA's 
Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
---------------------------------------------------------------------------

E. Relationship Between the SWMP and Required Permit Terms and 
Conditions

a. Enforceability of SWMP Documents
    In the proposed rule, EPA clarified that the SWMP document does not 
include enforceable effluent limitations or any other term or condition 
of the permit. EPA also proposed to delete the language in the Phase II 
regulations stating that implementation of the SWMP would constitute 
compliance with the MS4 permit standard. This clarification is retained 
in the final rule. EPA is revising Sec.  122.34(a) to clarify that the 
permit, not the stormwater management program, contains the 
requirements, including requirements for each of the six minimum 
measures, for reducing pollutants to the maximum extent practicable, 
protecting water quality and satisfying the appropriate water quality 
requirements of the CWA. See also Section VIII.A for further discussion 
of the deleted provision in Sec.  122.34(a). The final rule at Sec.  
122.34(b) requires each permit to require the permittee to develop a 
``written storm water management program document or documents that, at 
a minimum, describes in detail how the permittee intends to comply with 
the permit's requirements for each minimum control measure.'' Requiring 
that portions of the SWMP be in the form of written documentation is 
not a new requirement, but rather a clarification. The minimum control 
measure requirements have always required that certain aspects of the 
permittee's SWMP be documented in writing, e.g., the storm sewer system 
map, ordinances or other regulatory mechanisms to regulate illicit non-
stormwater discharges into the MS4 and to require erosion and sediment 
controls. The written SWMP provides the permitting authority something 
concrete to review to understand how the MS4 will comply with permit 
requirements and implement its stormwater management program. EPA 
included a specific requirement for written documentation to clarify, 
as requested by some commenters, the difference between a MS4's 
stormwater management program itself from the written description of 
the program.
    EPA received several comments regarding the role of the SWMP 
document under the different permitting options. Among these comments 
were several focusing on whether the implementation details described 
in the SWMP document itself, including the BMPs to be implemented and 
measurable goals to be achieved, would be enforceable as permit 
requirements. One commenter noted that some states consider a SWMP 
document to be an integral part of the permit and recommended that EPA 
do nothing in the rule to limit a permitting authority's ability to 
enforce against an MS4 for failure to implement any particular aspect 
of the SWMP and to require an accurate, up-to-date SWMP document that 
contains the provisions required by the permit. Other commenters, 
representing the regulated MS4 point of view, emphasized the role of 
the SWMP document as a planning tool for the permittee, one that is 
intended to be continually updated to reflect their adaptive management 
approach to permit compliance. These commenters cautioned against 
implying directly or indirectly that the SWMP document is an ``effluent 
limitation'' that is part of the permit, and felt that under Option 1 
of the proposed rule, provisions in SWMP documents could be interpreted 
by the public to be effluent limitations, thereby opening all details 
described in the SWMP document to enforcement. These commenters 
recommended that EPA more narrowly define ``effluent limitation'' and 
clarify that SWMPs are for planning purposes only and not subject to 
challenge by outside parties.
    In response to these comments, EPA clarifies that, under EPA's 
small MS4 regulations, the details included in the permittee's SWMP 
document are not directly enforceable as effluent limitations of the 
permit. The SWMP document is intended to be a tool that describes the 
means by which the MS4 establishes its stormwater controls and engages 
in the adaptive management process during the term of the permit. While 
the requirement to develop a SWMP document is an enforceable condition 
of the permit (see Sec.  122.34(b) of the final rule), the contents of 
the SWMP document and the SWMP document itself are not enforceable as 
effluent limitations of the permit, unless the document or the specific 
details within the SMWP are specifically incorporated by the permitting 
authority into the permit. In accordance with the final rule, 
therefore, if an MS4 permittee fails to develop a SWMP document that 
meets the requirements of its permit, this failure constitutes a permit 
violation. By contrast, the details of any part of the permittee's 
program that are described in the SWMP, unless specifically 
incorporated into the permit, are not enforceable under the permit, and 
because they are not terms of the permit, the MS4 may revise those 
parts of the SWMP if necessary to meet any permit requirements or to 
make improvements to stormwater controls during the permit term. As 
discussed in more detail below, the permitting authority has discretion 
to determine what elements, if any, of the SWMP are to be made 
enforceable, but in order to do so it must follow the procedural 
requirements for the second step under Sec.  122.28(d)(2).
    The regulations envision that the MS4 permittee will develop a 
written SWMP document that provides a road map for how the permittee 
will comply with the permit. The SWMP document(s) can be changed based 
on adaptations made during the course of the permit, which

[[Page 89340]]

enable the permittee to react to circumstances and experiences on the 
ground and to make adjustments to its program to better comply with the 
permit. The fact that the SWMP is an external tool and not required to 
be part of the permit is intended to enable the MS4 permittee to be 
able to modify and retool its approach during the course of the permit 
term in order to continually improve how it complies with the permit 
and to do this without requiring the permitting authority to review and 
approve each change as a permit modification. The fact that the 
regulations do not require the implementation details of the SWMP 
document to be made enforceable under the permit does not mean that a 
permitting authority cannot decide to directly incorporate portions of 
the SWMP or the entire SWMP as enforceable terms and conditions of the 
permit. However, in order to adopt any part of the SWMP document as an 
enforceable term or condition it must go through the proper permitting 
steps to do so. If a permitting authority chooses to directly 
incorporate elements of the SWMP document as enforceable permit 
requirements, once completing the minimum permitting steps to propose 
and finalize NPDES permit conditions, those elements of the SWMP are no 
longer external to the permit, but instead become enforceable terms and 
conditions of the permit.
    Lastly, EPA understands that some state permitting authorities 
already incorporate elements of their permittees' SWMP document using a 
process that is similar to the Two-Step General Permit process in the 
final rule. EPA emphasizes that under the final rule if a permitting 
authority chooses to adopt portions of their permittees' SWMPs using 
the Two-Step General Permit process this would be a valid way to 
formally incorporate these as permit terms and conditions; this is 
because in order to make these requirements enforceable under the 
permit the permitting authority provided the necessary review and 
public notice and comment procedures. By contrast, EPA generally would 
not consider general permits that state that the SWMP documents 
developed by the MS4 are enforceable under the permit, without first 
formally adopting the details of these documents to the individual 
permitting authority review and public participation required by the 
second step of the Two-Step General Permit, to be an adequate way in 
which to incorporate the details of the SWMP as enforceable 
requirements of the permit.
b. Permit Modification Considerations
    EPA raised the issue in the proposed rule of whether under the 
Procedural Approach (now in the final rule as the ``Two-Step General 
Permit'' approach) a permit modification would be necessary during the 
permit term if BMPs or measurable goals were changed by the permittee 
from that which was submitted to the permitting authority. EPA 
specifically sought comment on what criteria should apply for 
distinguishing between when a change to BMPs is ``substantial'' 
requiring a full public participation process or ``not substantial'' 
that would be subject to public notice but not public comment under a 
permit modification process similar to the process in Sec.  
122.42(e)(6).
    A number of commenters expressed support for treating some types of 
changes as non-substantial modifications to the permit. Commenters 
emphasized the fact that the types of plans, strategies, and practices 
implemented under MS4 SWMP are subject to considerable change, and that 
requiring these changes to undergo a review for a permit modification 
would stifle the process as well as innovation. Some commenters offered 
suggestions for what types of changes to the SWMP should constitute a 
substantial modification and should be reviewable by the permitting 
authority, and which types of changes should be considered non-
substantial. Some thought that a complete change to a BMP should be 
reviewed by the permitting authority for a modification, while others 
felt that such changes should not be submitted for review if the 
replacement BMP would be considered to provide equal or better 
pollutant removal. Another commenter suggested that EPA incorporate 
applicable requirements from the CAFO regulations whereby the permittee 
submits proposed changes to the permitting authority and the permitting 
authority must determine whether such changes comply with applicable, 
substantive legal requirements, and if the changes are substantial, 
then the permitting authority must require public notice, and an 
opportunity to provide comments or request a hearing before the 
determination is made on the modification.
    The Two-Step approach requires the MS4 operator to provide 
information about what it intends to do during the permit term to 
satisfy some or even all of the permit requirements for meeting the MS4 
permit standard. The rule then requires the permitting authority, 
through a review and public comment process, to establish MS4-specific 
permit terms and conditions that the permitting authority deems 
necessary to meet the MS4 permit standard. Once issued, these 
additional permit requirements are set for the permit term, and 
compliance is measured based on the permittee's ability to meet these 
enforceable terms and conditions. When the final permit terms and 
conditions are established, changes to those requirements can only be 
made through a formal modification process, which is subject to the 
requirements of Sec.  122.62, or Sec.  122.63 if the proposed change 
constitutes a minor modification.
    A distinction between what constitutes a potential change in permit 
terms and what amounts to merely a change in implementation of the SWMP 
is important to consider in the context of the Two-Step General Permit. 
Where a permittee proposes to change a BMP that it is implementing, and 
the change does not require the enforceable permit conditions to be 
changed in any way, but rather offers an alternative means of complying 
with the same permit conditions, EPA would not consider this to be a 
permit modification. For instance, if the MS4's permit requires that it 
conduct field tests of 20 percent of its priority outfalls on an annual 
basis for illicit discharges, and the permittee changes its method of 
conducting such tests that is described in its SWMP document, even 
though a revision to the SWMP document maintained by the permittee may 
be necessary, no permit modification would be necessary because the 20 
percent requirement is still in effect. By contrast, where a permittee 
proposes to substitute one of its BMPs for another one, and that change 
would alter the compliance expectations defined in the permit, the 
permittee will need to notify the permitting authority before 
proceeding to determine if a permit modification is necessary. For 
example, if the permittee's requirements specify in precise detail the 
field screening methodology that the MS4 will utilize for its priority 
outfalls, and the permittee has indicated it no longer intends to use 
this approach, then this proposed change will need to be evaluated by 
the permitting authority for whether a formal permit modification is 
needed. The important test here is to compare the permittee's proposed 
change with the terms and conditions of the permit.
    EPA shares the views of commenters who emphasized the problems that 
would be created by any permitting scheme that would require permit 
modifications to be formally reviewed and approved for every SWMP 
change. Changes and adjustments made to the

[[Page 89341]]

SWMP document during its implementation are a fundamental part of the 
Phase II program, which has always emphasized the need for adaptive 
management to make iterative progress towards water quality goals. 
Requiring every adaptive management change to undergo review and 
approval by the permitting authority would constrain implementation and 
innovation, as commenters suggested, and could greatly increase the 
burden on permitting authorities. Having said this, however, EPA 
recognizes that in some circumstances, as illustrated in the example 
above, the wording of a permit provision may require that a 
modification be made before a permittee may proceed with a proposed 
change to its SWMP document. If the permitting authority wants to 
minimize the instances when a permit modification would be needed, it 
could incorporate with specificity only those elements in the SWMP 
document that it deems essential for meeting the MS4 permit standard. 
For example, a permitting authority could decide that as an alternative 
to incorporating all of the details of the permittee's proposed outfall 
screening plan in its ``illicit discharge detection and elimination'' 
portion of its SWMP document into the permit, it might instead consider 
selecting the specific aspects of the screening plan that in its 
judgment would meet the MS4 permit standard, such as that the permittee 
will screen all ``high priority'' outfalls by a specific date and that 
all illicit discharges will be eliminated within a specified amount of 
time. By not incorporating every aspect of the specific plans and 
procedures described by the permittee in its SWMP document, the 
permittee can modify its implementation approach during the permit term 
without needing to check with the permitting authority before making 
any such changes and having that change approved under the permit.
    Apart from the issue of whether or not proposed SWMP document 
changes require a permit modification is the need for permitting 
authorities to specify what procedures it will follow to review and 
process any permit modifications. EPA agrees with the commenter that 
suggested that such procedures are needed. Rather than establishing a 
unique set of procedures, however, it is EPA's view that the existing 
regulatory procedures in Sec. Sec.  122.62 and 122.63, which apply to 
all NPDES permit modifications, are sufficient for modifications to a 
Two-Step General Permit. EPA advises permitting authorities to include 
in their permits a clear description of what types of proposed SWMP 
document changes will need to be reviewed as potential permit 
modifications, and the procedures for submitting and reviewing these 
changes.

F. Explaining How the Permit Terms and Conditions Meet the MS4 Permit 
Standard

    Several commenters recommended that the final rule clarify, both in 
the preamble and in the rule language itself, that permitting 
authorities are required to include an explanation in the permit's 
administrative record as to why the adopted permit provisions meet the 
MS4 permit standard. The commenters specified that this requirement 
should apply regardless of the option EPA chooses to include in the 
final rule.
    EPA agrees that the permitting authority's rationale for adopting 
specific small MS4 permit requirements should be documented consistent 
with the requirements for any NPDES permit requirements under Sec.  
124.8 and, if EPA is the permitting authority, Sec.  124.9. This 
rationale should describe the basis for the draft permit terms and 
conditions, including support for why the permitting authority has 
determined that the requirements meet the required MS4 permit standard. 
EPA agrees with the commenters' suggestion that this rationale should 
be provided under both permitting approaches in the final rule. This 
position is consistent with the Ninth Circuit's remand decision, which 
emphasized the need for permitting authorities to determine that 
requirements satisfy the MS4 permit standard and that the public be 
given an opportunity to provide comments and to request a hearing on 
this determination.
    For clarification purposes, EPA includes additional language in the 
final rule for the Two-Step General Permit approach to emphasize that 
the permitting authority's public notice for the second step (pursuant 
to Sec.  122.28(d)(2)(ii)) must include, apart from the NOI and the 
proposed additional permit terms and conditions, ``the basis for these 
additional requirements.'' This requirement is consistent with the 
requirements of Sec.  124.8(b) for what must be included in a permit 
fact sheet. EPA does not find it necessary for the permitting authority 
to produce a full fact sheet for each individual MS4 permittee under a 
Two-Step General Permit, nor do the regulations require this for the 
type of permit requirements that are being established under the second 
step. A fact sheet is required for the issuance of the general permit, 
regardless of whether the general permit is a Comprehensive General 
Permit or the base general permit in a Two-Step General Permit. See 
Sec.  124.8(a), which requires fact sheets to be prepared for general 
permits. However, the NPDES regulations do not require a separate fact 
sheet to be developed for the additional terms and conditions that are 
established for individual MS4s in the second step of the Two-Step 
General Permit, since these requirements are not themselves part of the 
base general permit, nor do they necessarily fall under any of the 
other types of permits listed in Sec.  124.8(a) as requiring a fact 
sheet (e.g., a ``major'' NPDES facility or site). Short of requiring a 
separate fact sheet for the draft additional permit conditions, EPA 
finds it reasonable to expect the proposed additional permit terms and 
conditions to be accompanied by the supporting rationale for why these 
requirements satisfy the MS4 permit standard.
    One commenter also suggested that permitting authorities be 
required to explain in the administrative record why any alternative 
standards recommended in public comments or included in any of EPA's 
MS4 permit compendia were not adopted. Permitting authorities are 
required to respond to significant comments received in response to the 
public notice for the Comprehensive General Permit and the base general 
permit of a Two-Step General Permit, and, in addition, to respond to 
the comments on the second step public notice under a Two-Step General 
Permit. Such comments could include alternative standards suggested for 
inclusion in the permit. EPA does not agree that permitting authorities 
should be required to explain in the administrative record why a 
provision included in any of the agency's MS4 permit compendia was not 
used in any particular permit. Again, the example permit provisions 
that are highlighted in the permit compendia are provided as guidance 
and are not intended to provide a floor for what types of provisions 
must be used in MS4 permits.

G. Minimum Federal Permit Requirements

    Several commenters requested clarification or raised concerns about 
the extent to which the Phase II regulations establish minimum permit 
requirements. This question is often raised in the context of state 
laws that prohibit the permitting authority from including terms and 
conditions in a permit that are more stringent than the federal minimum 
requirements or include more than the federal minimum requirements. 
Some comments confuse

[[Page 89342]]

``minimum permit requirements'' with the specified elements of the 
minimum control measures described in Sec.  122.34(b). In a related 
manner, a number of permitting authorities have shared with EPA their 
experiences in encountering resistance to a proposed permit requirement 
on the basis that it is not explicitly required in the federal 
regulations. In addition, some commenters asked EPA to clarify that 
suggestions made in the ``guidance'' paragraphs that are unique to the 
small MS4 regulations are not mandatory permit terms.
    The regulations specify the elements that must be addressed in a 
permit. It is up to the permitting authority to establish the specific 
terms and conditions to meet the MS4 permit standard for each of these 
elements. The minimum control measures set forth in Sec.  122.34(b), 
for instance, are not intended as minimum permit requirements, but 
rather areas of municipal stormwater management that must be addressed 
in permits through terms and conditions that are determined adequate to 
meet the MS4 permit standard. For that matter, if a permitting 
authority were to merely use the minimum control measure language from 
Sec.  122.34(b) word-for-word and include no further enforceable permit 
terms and conditions, this permit would not satisfactorily meet the 
requirement to establish clear, specific, and measurable requirements 
that together ensure permittees will comply with the MS4 permit 
standard. EPA emphasizes that what constitutes compliance with the MS4 
permit standard continues to evolve. The need to reevaluate what is 
meant by ``maximum extent practicable'' for each permit term, as well 
as the need to determine what is necessary to protect water quality and 
satisfy the appropriate water quality requirements of the CWA, means 
that what constitutes compliance will by necessity change over time. 
Therefore, in EPA's view, those that argue that the minimum federal 
requirements are what is included in the wording of the minimum control 
measures, are misconstruing the intent of the regulations, and are 
handicapping permits by artificially tying the MS4 permit standard to 
the minimum control measures.
    EPA emphasizes that the minimum control measures do not restrict 
the permitting authority from regulating additional sources of 
stormwater pollutant discharges, not specifically mentioned in the 
minimum control measure language. For example, some states require 
small MS4s with very large populations to implement a program that 
addresses industrial sites due to the concentration of industrial sites 
in many of their larger urban areas. (Consider that some small MS4s can 
be the same size as ``medium'' MS4s, which are required to have a 
program for addressing stormwater discharges from industrial sites.) 
Such a requirement represents what is necessary, for those small MS4s, 
to reduce pollutants as necessary to meet the MS4 permit standard. This 
does not mean that the requirement is more stringent than the minimum 
control measures, but rather it constitutes what is needed in the 
permitting authority's view to satisfy the MS4 permit standard.
    In response to the comments relating to the guidance language in 
Sec.  122.34(b), EPA verifies that this ``guidance'' is intended to act 
as suggested methods of implementation, not mandatory permit terms. 
Having said this, EPA points out that these guidelines could form the 
basis of permit terms that meet the Sec.  122.34(a) requirement to 
articulate requirements in a clear, specific, and measurable manner. 
EPA's interest in having more specific requirements in permits is to 
provide clarity of expectations and to hold MS4s accountable for 
implementing a program that continues to make progress toward 
achievement of water quality objectives. For a permitting authority to 
include requirements in a permit based on these ``guidance 
requirements,'' because in its view they are necessary to ensure MS4s 
meet the MS4 permit standard, does not mean that the permit has 
established requirements beyond the federal minimum or that the 
permitting authority impermissibly used guidance to develop enforceable 
requirements.

H. Comments Beyond the Scope of This Rulemaking

    EPA received numerous public comments suggesting revisions to the 
substantive requirements in Sec.  122.34. EPA clearly stated its intent 
in the preamble to the proposed rule that it was not proposing to 
change any substantive requirement and therefore the many comments 
suggesting the addition of specific requirements (e.g., establish or do 
not establish a numeric retention standard for post-construction 
stormwater controls) are outside the scope of this rulemaking.

VII. Revisions to Other Parts of Sec.  122.34

A. Compliance Timeline for New MS4 Permittees

    EPA proposed a minor revision to Sec.  122.34(a) to include the 
word ``new'' before ``permittees'' to indicate that the five-year 
period allowed to develop and implement their stormwater management 
program applies to the initial permit for new permittees. New 
permittees could include small MS4s that are in urbanized areas for the 
first time because of demographic changes reflected in the latest 
decennial census, or they could be specifically designated by a 
permitting authority as needing an NPDES permit to protect water 
quality. This change is intended to preserve the flexibility included 
in Phase II regulations in place prior to this final rule, and to more 
clearly indicate that the extended time period for compliance is 
intended to apply to MS4s that must put a stormwater management program 
in place for the first time. This revision does not change the status 
quo; it merely recognizes that first-time small MS4 permittees have up 
to five years to develop and implement their SWMPs, while small MS4s 
that have already been permitted will have developed and implemented 
their SWMPs when they reapply for permit coverage under an individual 
permit or submit an NOI under the next small MS4 general permit. This 
is not to say that all actions necessary to achieve pollutant 
reductions must be completed in the first five years. EPA recognizes 
that MS4s may need more time, for example, to complete the various 
steps needed to get structural controls into place and operational 
(e.g., design project(s), secure funding, follow procurement 
procedures, etc. before installing structural BMPs). Therefore, EPA is 
retaining in the final rule the proposed clarification that permitting 
authorities may provide up to 5 years for small MS4s being permitted 
for the first time to come into compliance with the terms and 
conditions of the permit and to implement necessary BMPs.

B. Revisions to Evaluation and Assessment Provisions

    EPA proposed to renumber existing Sec.  122.34(g) as Sec.  
122.34(d) and to incorporate the stylistic changes described in Section 
VII.E of this preamble. Several commenters suggested that the 
terminology in this paragraph be changed to conform to the text changes 
made elsewhere. EPA agrees that changes to reflect the remand changes 
similar to the ones made elsewhere in the section are appropriate for 
the newly designated Sec.  122.34(d)(1) concerning requirements for 
evaluation and assessment. The new Sec.  122.34(d)(1) now states that 
the permit must require the permittee to evaluate compliance with the 
terms and conditions of the permit, the effectiveness of the components 
of its stormwater management program, and of achieving

[[Page 89343]]

the measurable requirements in the permit. Rather than evaluate the 
appropriateness of self-identified BMPs and measurable goals as 
previously required, the final rule requires permits to include terms 
and conditions to evaluate compliance with permit requirements, 
including achievement of measurable requirements established as permit 
requirements. This language more closely aligns the required evaluation 
and assessment requirements with the newly articulated requirements for 
developing permit conditions that are clear, specific, and measurable. 
It also more accurately describes the objectives of the evaluation and 
assessment requirements, given other revisions made in response to the 
remand to clarify that permitting authorities determine what is 
constitutes compliance, not the regulated MS4s.
    The proposed rule inadvertently omitted a recent amendment to Sec.  
122.34(g) (Sec.  122.34(d) in the final rule) that was added by the 
eReporting rule (80 FR 64064, Oct. 22, 2015). This omission is 
corrected in the rule text that appears in this Federal Register 
document. The relevant provision in Sec.  122.34(d)(3) states that, 
among other things, starting on December 21, 2020 all reports submitted 
in compliance with this section must be submitted electronically by the 
owner, operator, or the duly authorized representative of the small MS4 
to the permitting authority or initial recipient, as defined in 40 CFR 
127.2(b), in compliance with this section and 40 CFR part 3 (including, 
in all cases, subpart D to part 3), Sec.  122.22, and 40 CFR part 127, 
and that prior to this date, and independent of part 127, the owner, 
operator, or the duly authorized representative of the small MS4 may be 
required to report electronically if specified by a particular permit 
or if required to do so by state law. Section IX addresses in more 
detail the relationship between this final rule and the eReporting 
rule.
    EPA received a request to revise proposed Sec.  122.34(d)(2) 
regarding recordkeeping requirements to mandate that MS4s post on-line 
the SWMP documents required under Sec.  122.34(b). Currently, MS4s are 
only required to make summaries of their SWMP available to the public 
upon request. EPA is of the view that on-line posting of information is 
an effective way to communicate stormwater program information, and 
encourages MS4s to post on-line documents that describe their 
stormwater management plans, as well as provide other information about 
managing stormwater for various audiences. EPA, however, declines to 
adopt a regulatory requirement for MS4s to post documents on-line. EPA 
did not propose any changes to the recordkeeping requirements, and 
accordingly, the request is outside the scope of the proposal. EPA 
notes that some permitting authorities have required on-line posting of 
SWMP information and educational materials to implement minimum 
controls measures for public education and involvement, as well as 
elements of other minimum control measures such as the illicit 
discharge detection and elimination, construction and post-construction 
program minimum controls, and other permit requirements.

C. Establishing Water Quality-Based Requirements

    EPA made minor changes to the provisions for establishing ``other 
applicable requirements.'' See Sec.  122.34(c). The following 
discussion explains these changes and describes how the section has 
been rearranged. It then discusses issues raised about how water 
quality-based requirements can be established under the two general 
permit options.
    EPA proposed to consolidate existing paragraphs (e)(1) and (f) into 
one paragraph and to move this consolidated provision to Sec.  
122.34(c). EPA also proposed to delete guidance paragraph (e)(2). 
Existing Sec.  122.34(e)(1) addresses the need to comply with permit 
requirements that are in addition to the minimum control measures based 
on a TMDL or equivalent analysis. Existing Sec.  122.34(f) requires 
compliance with permit requirements that have been developed consistent 
with provisions in Sec. Sec.  122.41 through 122.49, as appropriate. 
EPA is promulgating the proposed revisions, with minor editorial 
changes, as discussed below.
    The new Sec.  122.34(c)(1) states that the permit will include, as 
appropriate, more stringent terms and conditions, including permit 
requirements that modify, or are in addition to, the minimum control 
measures, based on an approved total maximum daily load (TMDL) or 
equivalent analysis, or where the NPDES permitting authority determines 
such terms and conditions are needed to protect water quality. EPA 
replaced the term ``effluent limitations'' with ``terms and 
conditions'' to be consistent with changes made to Sec.  122.34(a). In 
a minor change from the proposal, the paragraph now more clearly 
indicates that the permitting authority has the discretion to require 
additional measures to protect water quality, not limited to 
requirements based on a TMDL or equivalent analysis. This change 
reflects the authority granted by the statute to protect water quality 
in section 402(p)(6) of the CWA. It also responds to a comment that due 
to the time it takes for TMDL development, permitting authorities 
should not be limited to consideration of only TMDL or equivalent 
analyses before imposing water quality based requirements. As a general 
matter, EPA agrees that other types of watershed plans that identify 
sources that should be controlled can provide a valid basis for 
establishing additional permit terms and conditions. Additionally, EPA 
recognizes that there may be instances where other information about 
the water quality impacts of the MS4 discharges may be sufficient to 
indicate the need for additional controls. (Of course, permitting 
authorities must have a rational basis and record support for 
determining that additional requirements serve a water quality 
objective.)
    The final rule deletes existing Sec.  122.34(e)(2), as was 
proposed. As explained in the preamble to the proposed rule, the 
guidance in existing Sec.  122.34(e)(2) reflects EPA's recommendation 
for the initial round of permit issuance, which has already occurred 
for all permitting authorities. The phrasing of the guidance language 
no longer represents EPA policy with respect to including additional 
requirements. EPA has found that an increasing number of permitting 
authorities are already including specific requirements in their small 
MS4 permits that address not only wasteload allocations in TMDLs, but 
also other requirements that are in addition to permit provisions 
implementing the six minimum control measures irrespective of the 
status of EPA's Sec.  122.37 evaluation. See EPA's Compendium of MS4 
Permitting Approaches--Part 3: Water Quality-Based Requirements (EPA, 
2016).\9\ Based on the advancements made by specific permitting 
programs, and information that points to stormwater discharges 
continuing to cause waterbody impairments around the country, prior to 
the promulgation of this final rule, EPA has advised in guidance that 
permitting authorities write MS4 permits with provisions that are 
``clear, specific, measurable, and enforceable,'' incorporating such 
requirements as clear performance standards, and including measurable 
goals or quantifiable targets for

[[Page 89344]]

implementation.\10\ This guidance is a more accurate reflection of the 
agency's current views on how the Phase II regulations should be 
implemented than the guidance currently in Sec.  122.34(e)(2).
---------------------------------------------------------------------------

    \9\ This document will be made available at on EPA's Web site at 
https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
    \10\ See EPA's MS4 Permit Improvement Guide (EPA, 2010).
---------------------------------------------------------------------------

    EPA received few comments about the proposed removal of Sec.  
122.34(e)(2). Several commenters strongly supported the deletion of 
Sec.  122.34(e)(2), while others expressed concern that MS4s may not be 
in a position to implement additional controls. The MS4 permit standard 
embodies a great deal of flexibility and gives the permitting authority 
discretion to address particular water quality impairments. Where a 
waterbody is impaired in part due to discharges from small MS4s, 
especially where an approved TMDL allocates wasteload reduction 
responsibilities to those MS4s, additional controls to achieve 
reasonable progress towards attainment of water quality standards will 
need to be considered. The permitting authority has the ability under 
the final rule to develop requirements tailored to a particular MS4, 
either by issuing an individual permit or by employing the Two-Step 
General Permit process in Sec.  122.28(d)(2). Some permitting 
authorities have successfully created requirements for specific MS4s in 
a more comprehensive general permit. For example, the 2013 California 
Small MS4 general permit establishes additional requirements for small 
MS4s discharging to waters with an approved TMDL. Each set of 
``deliverables'' or ``actions required'' is tailored to the individual 
MS4, or groupings of MS4s, based on the pollutant of concern and the 
particular wasteload allocation. See Appendix G of the 2013 California 
Small MS4 general permit.

D. Establishing Water Quality-Based Requirements Under the Two General 
Permit Options

    EPA received a number of questions and suggestions concerning how 
requirements to implement applicable TMDLs should be incorporated into 
general permits under any of the proposed options. Some comments 
asserted that there is incompatibility between the proposed Option 1 
approach and the need to establish permit terms and conditions that 
address TMDLs, which require watershed- and MS4-specific provisions. 
One commenter questioned whether a general permit can incorporate 
different water quality-based effluent limitations for different MS4s 
asserting that the NPDES regulations require that general permits 
include the same water quality-based effluent limits for sources within 
the same category. Several commenters also suggested that requirements 
addressing TMDLs are ones that are amenable to using the Option 2 
approach given their inherently watershed-specific nature and the fact 
that TMDL implementation plans often need to be developed with the 
involvement of the community so that issues such as implementation 
schedules and BMP approaches reflect the interests of the affected 
public and are attainable.
    EPA clarifies that in order to comply fully with the Comprehensive 
General Permit approach, all terms and conditions established based on 
approved TMDLs must be included within the permit itself. Use of the 
Comprehensive General Permit approach means that the permit needs to 
spell out the requirements necessary for permittees ``to achieve 
reasonable further progress toward attainment of water quality 
standards.'' (64 FR 68753, December 8, 1999) Therefore, where a TMDL 
establishes wasteload allocations specifically or categorically for MS4 
discharges to the impaired water, the permittee should expect to find 
``clear, specific, and measurable'' requirements within the permit that 
delineate their responsibilities during the permit term relative to 
that TMDL and associated wasteload allocation(s). There are a variety 
of approaches for incorporating these TMDL-related requirements into 
general permits for specific MS4s. One noteworthy approach places all 
applicable water quality-based effluent limitations in an appendix to 
the general permit (e.g., Appendix 2 of the 2012 Western Washington 
Small MS4 General Permit). For this particular permit, the state 
evaluated all relevant TMDLs addressing discharges from small MS4s 
eligible for coverage under the permit and assigned additional 
requirements focused on reducing the discharge of the impairment 
pollutant. See EPA's Compendium of MS4 Permitting Approaches--Part 3: 
Water Quality-Based Requirements (EPA, 2016), which will be posted on 
EPA's Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources, for additional examples.
    EPA does not view any of these approaches as inconsistent with the 
NPDES regulatory requirement that ``where sources within a specific 
category or subcategory of dischargers are subject to water quality-
based limits . . . the sources in that specific category or subcategory 
shall be subject to the same water quality-based effluent 
limitations.'' See Sec.  122.28(a)(3). It is certainly true that, due 
to the watershed-specific nature of TMDLs, requirements in general 
permit based on TMDLs can vary for individual MS4s based on the 
impaired water to which they discharge and the specific details of the 
applicable TMDL. EPA, however, does not view these differing water 
quality-based limit requirements within the same general permit as 
running afoul of the Sec.  122.28(a)(3) requirement. EPA considers the 
different water quality-based requirements that are unique to a TMDL 
and/or to MS4s that are subject to the TMDL to be the equivalent of 
dividing the MS4 permittee universe into subcategories based on these 
requirements. This categorization is not dissimilar to the way in which 
EPA and many states issue their Multi-Sector General Permits for 
Stormwater Discharges Associated with Industrial Activity, in which 
there are requirements common to all facilities and a separate set of 
requirements that apply to different industrial sectors or subsectors. 
By establishing different permittee subcategories based on TMDLs, the 
permit remains consistent with the requirement in Sec.  122.28(a)(3).
    Use of a Two-Step General Permit similarly requires that where 
requirements are necessary under Sec.  122.34(c) to address TMDLs that 
they be expressed in a clear, specific, and measurable manner. These 
requirements can be included in the base general permit or they can be 
developed through the second permitting step of the Two-Step General 
Permit approach where additional terms and conditions are established 
for individual MS4s. EPA agrees with the commenters that, given the 
watershed-specific nature of TMDLs and the strategies needed to address 
them, in many cases it may be that a Two-Step General Permit is the 
approach that provides the greatest amount of flexibility to account 
for these differences. The advantage of this approach is that it allows 
each MS4 to develop and propose stormwater control strategies that are 
supported by the community and that can then be reviewed by the 
permitting authority for adequacy. EPA notes that there are several 
states that have already set up permit approaches that require MS4s to 
first develop TMDL implementation plans that are then reviewed and 
approved by the permitting authority. These approaches may provide 
useful models to draw from especially for those permitting authorities 
that choose to establish water quality-based requirements through a 
Two-Step

[[Page 89345]]

General Permit. See examples in EPA's compendium document, Compendium 
of MS4 Permitting Approaches--Part 3: Water Quality-Based Requirements 
(EPA, 2016), which will be posted on EPA's Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.

E. Restructuring, Consolidating, Conforming, and Other Editorial 
Revisions

    EPA proposed a restructuring of certain provisions in Sec.  
122.34(c) through (e) and making a number of minor editorial revisions 
to reflect the changes made elsewhere to meet remand requirements and 
to change the style of regulatory text, as discussed earlier in this 
preamble. EPA proposed to update the cross-references in Sec.  122.35 
to conform to the rearrangement of provisions in Sec.  122.34. The 
preamble at Section VIII.B addresses changes to address water quality-
based permit provisions currently in Sec.  122.34(e) and to consolidate 
existing paragraphs (e) and (f) into new paragraph (c). This section 
explains other revisions. For the most part, EPA is promulgating these 
proposed revisions and has added similar revisions to additional 
provisions that were identified in comments. The following discussion 
briefly explains those changes.
    First, the current Sec.  122.34(c) of the regulations concerning 
``qualifying local programs'' has been moved to Sec.  122.34(e) as 
proposed. The only changes to the text of the existing language are to 
remove the words ``you'' and replace it with ``the permittee.'' EPA 
received no comments on this proposed revision.
    Second, the current Sec.  122.34(d) that addresses information 
requirements for obtaining NPDES permit coverage under a general or 
individual permit has been moved to Sec.  122.33(b)(2). All basic 
information requirements necessary to obtain permit coverage under the 
two types of individual permits and two types of general permits are 
now consolidated in Sec.  122.33. EPA clarifies that these information 
requirements apply to individual permits, while the information 
required to be included in NOIs for general permits is to be determined 
by the permitting authority based on what it needs in order to 
establish the permit terms and conditions necessary to meet the MS4 
permit standard. See further discussion in Sections IV.C and E.
    Third, EPA also proposed to delete paragraphs (d)(2) and (3) in 
Sec.  122.34 that required the permitting authority to provide a menu 
of BMPs for each minimum control measure, and, where such a menu of 
BMPS had not been provided, stated that a small MS4 need not be held to 
any ``measurable goal'' for that BMP. The final rule deletes these 
paragraphs as no longer necessary. EPA provided a menu of BMPs that has 
been available on its Web site for a number of years. EPA expects that 
this menu and any similar state menus will continue to be available. In 
addition, the function of ``measurable goals'' in the permitting 
process is clarified under the final rule. In order to address the EDC 
court's concerns about the lack of permitting authority review of the 
NOI, which contains information such as the MS4 operator's proposed 
measurable goals, the final rule clarifies that measurable goals are 
submitted in proposed form and must be reviewed and approved, and 
modified where necessary, by the permitting authority prior to becoming 
effective as enforceable requirements. Therefore, in the final rule, 
``measurable goals'' are now ``proposed measurable goals'' that are 
submitted by an MS4 seeking an individual permit to implement the 
requirements in Sec.  122.34, and at the discretion of the permitting 
authority, if included as required to be submitted in an NOI for 
coverage under a Two-Step General Permit under Sec.  122.28(d)(2) as 
information necessary to establish permit conditions.
    Some commenters favored keeping the requirements for a menu of BMPs 
as a way to promote equitable treatment among MS4s that have similar 
circumstances. While EPA has deleted the proviso that MS4s will not be 
held accountable for their selected measurable goals if a menu of BMPs 
has not been developed by the permitting authority, EPA does not expect 
permitting authorities to eliminate existing and future BMPs menus. 
Under Sec.  123.35(g), an approved state is still obligated to 
establish BMP menus for the minimum control measures to facilitate 
effective program implementation. Not making information about BMPs 
available would be counter to effective program implementation. EPA 
anticipates that equity amongst MS4s will be further enhanced by the 
requirement for clear, specific, and measurable permit terms and 
conditions. It should be clear from any proposed general permit if 
similar MS4s are not being treated equitably and the public will have 
an opportunity to voice (through comments or a public hearing, if one 
is held) support or objections to different permit terms and conditions 
among MS4s. MS4s include a broad range of entities that, as noted by 
several commenters, are likely to need different terms and conditions 
for their particular situations, e.g., state departments of 
transportation that generally do not have the same police powers as 
local governments and who serve a largely transient audience. EPA also 
expects that dissimilar requirements for similar MS4s would be 
explained in the fact sheet or other document that provides the 
rationale for permit terms and conditions.
    Finally, in the proposed rule, EPA used the term ``Director'' in 
place of ``NPDES Permitting Authority'' in Sec. Sec.  122.33-122.35. 
This proposed revision was intended to use terminology in the Phase II 
regulations that is used in other sections of part 122. ``Director'' 
and ``NPDES Permitting Authority'' mean the same thing, i.e., the 
Regional Administrator or the Director of an authorized State NPDES 
program, depending on which entity issues the NPDES permits in a 
particular area. EPA uses these terms interchangeably. However, for 
purposes of minimizing the number of changes not directly related to 
the remand, EPA has decided to retain the status quo with respect to 
how these terms are used currently. In the sections that address the 
small MS4 program (Sec. Sec.  122.32--122.35), the final rule uses the 
term ``NPDES permitting authority.'' This is different than the 
terminology that was proposed. The other sections of part 122, for 
example, Sec. Sec.  122.26 and 122.28, will continue to use the term 
``Director.''

VIII. Final Rule Implementation

A. When the Final Rule Must Be Implemented

    EPA received comments from state permitting authorities requesting 
clarification on the implementation timeframe for the new rule. EPA 
also received comments from environmental organizations indicating that 
given the length of time since the Ninth Circuit found the procedural 
aspects of the Phase II regulations to be invalid, that permitting 
authorities should be required to modify their general permit 
procedures now to comport their program with the CWA requirements for 
permitting authority review and public participation, and also 
recommended that EPA should require current permits to be reopened for 
this purposes.
    To clarify, this final rule becomes effective on January 9, 2017. 
It is not EPA's expectation that permitting authorities be required to 
reopen permits currently in effect to comply with the requirements of 
this final rule. However, EPA does expect that permitting authorities 
comply with the final rule when the next permit is being

[[Page 89346]]

issued following the expiration of the current permit. Having said 
this, EPA acknowledges that there are a small number of states whose 
permits are expiring within a few months of the final rule's effective 
date, and for these states it is likely too late in their process for 
them to make the necessary changes to fully comply with the final rule. 
Therefore, a permitting authority that has proposed a permit, is in the 
final stages of issuing a new permit (e.g., after the close of the 
public comment period), or has issued a final permit before this rule 
becomes effective will not be expected to re-open those permits. Where 
the permitting authority has not yet proposed a permit, EPA expects 
that these permits will be issued consistent with the final rule's 
requirements.
    EPA recognizes that development of a new small MS4 general permit 
starts well in advance of the expiration of existing permits. Still, 
EPA anticipates that most states can develop clear, specific, and 
measurable permit terms and conditions without the need for a change to 
their legal authorities to implement the type(s) of general permits it 
plans to use. The substantive standard has not changed (i.e., the MS4 
permit standard); the final rule merely clarifies the way in which 
permit terms and conditions that comply with the standard must be 
expressed and how they are established. Even where a state determines 
that it needs to change its regulations to establish new procedural 
requirements to implement the final rule, such as where a state 
establishes the general permit through a rulemaking process, it may be 
able to develop necessary permit terms and conditions consistent with 
the final rule based on its existing statutory authorities. In the 
event that states must change their legal authorities before they can 
act, the existing regulations at Sec.  123.62 provides states up to one 
year to make the necessary changes and up to two years if a statutory 
change is needed.

B. Status of the 2004 Interim Guidance

    This final rule, upon its effective date on January 9, 2017, 
establishes the requirements for issuing general permits for small MS4 
discharges in response to the U.S. Court of Appeals for the Ninth 
Circuit's decision in Environmental Defense Center v. EPA. The 2004 
Interim Guidance (Implementing the Partial Remand of the Stormwater 
Phase II Regulations Regarding Notices of Intent & NPDES General 
Permitting for Phase II MS4s, EPA (2004)), by its own terms, ``provides 
interim guidance to EPA and State NPDES permitting authorities pending 
a rulemaking to conform the Phase II rule to the court's order.'' With 
the promulgation of this final rule, the ``interim guidance'' is no 
longer needed.

IX. Consistency With the NPDES Electronic Reporting Rule

    EPA issued a final NPDES Electronic Reporting Rule (referred to as 
the ``eReporting Rule'') requiring that permitting authorities and 
regulated entities electronically submit permit and reporting 
information instead of submitting paper forms. (80 FR 64064, Oct. 22, 
2015) The promulgation of the eReporting Rule includes ``data 
elements'' (in appendix A of the rule) that must be reported on by both 
Phase II small MS4s and permitting authorities related to individual 
NOIs submitted for general permit coverage and required program 
reports. The data elements included in the eReporting Rule for Phase II 
MS4s are based on the regulatory requirements in existence at the time 
that rule was promulgated. These data elements, therefore, do not 
reflect changes that are being made to the corresponding requirements 
as part of this MS4 remand rule.
    EPA received two public comments, which were similarly focused on 
the need to ensure consistency between the final MS4 remand rule and 
the eReporting Rule. One commenter recommended that EPA be prepared 
once the MS4 remand rule is finalized to make conforming regulatory 
changes to the eReporting Rule so that programs are again aligned. The 
other commenter also gave examples of how the wording of the eReporting 
data elements would be inconsistent with the rule language under 
consideration for Option 1 of the proposed MS4 remand rule. More 
specifically, the commenter questioned how permitting authorities would 
be able to populate the required data elements for the NOI for a 
general permit implemented under proposed Option 1 considering that 
information on the MS4 operator's BMPs and measurable goals would no 
longer be required as part of the NOI.
    EPA agrees with the commenters on the importance of consistency 
between this final rule and the eReporting Rule. Because the appendix A 
data elements are no more than a reflection of what the NPDES 
regulations require for NOIs and compliance reports, where the 
underlying regulations change, as they are under the final MS4 remand 
rule, it is necessary to make conforming changes to appendix A. Now 
that the final MS4 remand rule language is set, there are some data 
elements that will need to be updated to conform to the new 
expectations for NOIs and program reports. EPA is aware of the 
following types of inconsistencies between the final MS4 remand rule 
and the appendix A data elements related to small MS4s:
     References to ``measurable goals'' in data name and data 
descriptions associated with minimum control measures--Under the final 
MS4 remand rule, the MS4 operator's measurable goals no longer take on 
the same role that they did under the previous regulations. See related 
discussion in Section VII.E. Under the new regulations, the final terms 
and conditions in the general permit and any additional requirements 
developed through the Two-Step process, are what is relevant. 
References in appendix A to the permittee's measurable goals will need 
to be substituted with appropriate references to the final terms and 
conditions of the permit. Additional updates are also needed in some 
places in appendix A to change the reference from ``measurable goals'' 
to the applicable schedule or deadline for compliance with the specific 
permit requirement.
     References to the permittee's intended actions during the 
permit term--The data elements in appendix A, Table 2 describe a number 
of the minimum control measure elements as reflecting what the 
permittee intends to accomplish during the permit term. Under the final 
MS4 remand rule, the MS4's intended actions are not what the permittee 
is held to, but rather the final permit terms and conditions. 
Therefore, EPA will need to update any references to intended actions 
to reflect the fact that the terms and conditions of the permit are 
what is necessary to report as a data element.
     Regulatory citations--Updates are also necessary to the 
citations in appendix A to reflect changes made to the Phase II 
regulations by the final MS4 remand rule.
     NPDES Data Group Number (appendix A, Table 2)--This number 
corresponds to the entity that is required to provide information on 
the data element under the eReporting Rule. Table 1 of appendix A 
assigns a ``Data Provider'' number to various entities, which is 
reflected in Table 2. In the portion of appendix A related to 
information from the NOIs, the ``Data Provider'' for most of the 
minimum control measure data elements is indicated as the ``Authorized 
NPDES Program'' (or permitting authority) and/or the ``NPDES 
Permittee.'' Because the permitting authority under the final MS4 
remand rule is solely responsible for establishing final permit terms 
and conditions, EPA will need to update the

[[Page 89347]]

Data Provider to remove references to the NPDES Permittee, where 
applicable.
    EPA has also discovered in reviewing this issue that it 
inadvertently omitted two data elements from the final eReporting Rule. 
These data elements correspond to the schedules, deadlines, and 
milestones that are specified in the permit for the pollution 
prevention and good housekeeping for municipal operations requirements 
established under Sec.  122.34(b)(6), and any additional requirements 
that may be established under Sec.  122.34(c).
    EPA is interested in taking the time needed to ensure that the 
edits required to appendix A are made precisely. Due to the time 
constraints associated with finalizing the MS4 remand rule, EPA has 
determined that the updates needed in appendix A require a separate 
regulatory action outside of this rulemaking. In addition, EPA notes 
that the deadline for implementation of the affected eReporting rule 
provisions is December 21, 2020, therefore there should be sufficient 
time to make the necessary changes before electronic reporting is 
required under the regulations. EPA will initiate the rulemaking 
process immediately and will complete it as soon as possible. In the 
meantime, EPA will continue to work with its state counterparts to 
provide appropriate guidance on applying the data elements in the near 
term.

X. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket for this action. In addition, EPA prepared an analysis of the 
potential costs associated with this action. This analysis, ``Economic 
Analysis for the Municipal Separate Storm Sewer System (MS4) General 
Permit Remand Rule,'' is summarized in Section I.D and is available in 
the docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2040-0004.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. 
Although small MS4s are regulated under the Phase II regulations, this 
rule does not change the underlying requirements to which these 
entities are subject. Instead, the focus of this rule is on ensuring 
that the process by which NPDES permitting authorities authorize 
discharges from small MS4s using general permits comports with the 
legal requirements of the Clean Water Act and the applicable NPDES 
regulations.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538. This action does not 
significantly or uniquely affect small governments because this 
rulemaking focuses on the way in which state permitting authorities 
administer general permit coverage to small MS4s, and does not modify 
the underlying permit requirements to which they are subject. 
Nonetheless, EPA consulted with small governments concerning the 
regulatory requirements that might indirectly affect them, as described 
in Section I.E.

E. Executive Order 13132: Federalism

    This rule will not have substantial direct effects on the states, 
the relationship between the national government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government. The rule makes changes to the way in which NPDES 
permitting authorities, including authorized state government agencies, 
provide general permit coverage to small MS4s. The impact to states 
which are NPDES permitting authorities may range from $558,025 and 
$604,770 annually, depending upon the rule option that is finalized. 
Details of this analysis are presented in ``Economic Analysis for the 
Final Municipal Separate Storm Sewer System General Permit Remand 
Rule,'' which is available in the docket for the rule at http://www.regulations.gov under Docket ID No. EPA-HQ-OW-2015-0671.
    Keeping with the spirit of E.O. 13132 and consistent with EPA's 
policy to promote communications between EPA and state and local 
governments, EPA met with state and local officials throughout the 
process of developing the proposed rule and received feedback on how 
proposed options would affect them. EPA engaged in extensive outreach 
via conference calls to authorized states (e.g., individual state 
permitting authorities, and the Association of Clean Water 
Administrators) and regulated MS4s (e.g., the National Association of 
Clean Water Agencies, Water Environment Federation, National 
Association of Flood & Stormwater Management Agencies, National 
Municipal Stormwater Alliance) to gather input on how EPA's current 
regulations are affecting them, and to enable officials of affected 
state and local governments to have meaningful and timely input into 
the development of the options presented in this rule. EPA also reached 
out to a number of environmental organizations (e.g., American Rivers, 
Chesapeake Bay Foundation, Cahaba River Society, Natural Resources 
Defense Council, PennFuture, River Network) and regulated industry 
(e.g., National Association of Home Builders).

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 since it does not have a direct substantial 
impact on one or more federally recognized tribes. The rule affects the 
way in which small MS4s are covered under a general permit for 
stormwater discharges and primarily affects the NPDES permitting 
authorities. No tribal governments are authorized NPDES permitting 
authorities at this time. The rule could have an indirect impact on an 
Indian tribe that is a regulated MS4 in that the NOI required for 
coverage under a general permit may be changed as a result of the rule 
(if finalized) or may be subject to closer scrutiny by the permitting 
authority and more of the requirements could be established as 
enforceable permit conditions. However, the substance of what an MS4 
must do will not change significantly as a result of this rule. Thus, 
Executive Order 13175 does not apply to this action.
    Consistent with the EPA Policy on Consultation and Coordination 
with Indian Tribes, EPA conducted outreach to tribal officials during 
the development of this action. EPA spoke with tribal members during a 
conference call with the National Tribal Water Council to gather input 
on how tribal governments are currently affected by MS4 regulations and 
may be affected by

[[Page 89348]]

the options in this rule. Based on this outreach and additional, 
internal analysis, EPA confirmed that this action would have little 
tribal impact.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it 
does not significantly affect energy supply, distribution, or use.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA determined that the human health or environmental risk 
addressed by this action will not have potential disproportionately 
high and adverse human health or environmental effects on minority, 
low-income, or indigenous populations. This action affects the 
procedures by which NPDES permitting authorities provide general permit 
coverage for small MS4s, to help ensure that small MS4s ``reduce the 
discharge of pollutants to the maximum extent practicable (MEP), to 
protect water quality and to satisfy the water quality requirements of 
the Clean Water Act.'' It does not change any current human health or 
environmental risk standards.

K. Congressional Review Act

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 122

    Environmental protection, Storm water, Water pollution.

    Dated: November 17, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, EPA amends 40 CFR part 122 
as set forth below:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1251 et seq.


0
2. Amend Sec.  122.28 by adding paragraph (d) to read as follows:


Sec.  122.28  General permits (applicable to State NPDES programs, see 
Sec.  123.25).

* * * * *
    (d) Small municipal separate storm sewer systems (MS4s) (Applicable 
to State programs). For general permits issued under paragraph (b) of 
this section for small MS4s, the Director must establish the terms and 
conditions necessary to meet the requirements of Sec.  122.34 using one 
of the two permitting approaches in paragraph (d)(1) or (2) of this 
section. The Director must indicate in the permit or fact sheet which 
approach is being used.
    (1) Comprehensive general permit. The Director includes all 
required permit terms and conditions in the general permit; or
    (2) Two-step general permit. The Director includes required permit 
terms and conditions in the general permit applicable to all eligible 
small MS4s and, during the process of authorizing small MS4s to 
discharge, establishes additional terms and conditions not included in 
the general permit to satisfy one or more of the permit requirements in 
Sec.  122.34 for individual small MS4 operators.
    (i) The general permit must require that any small MS4 operator 
seeking authorization to discharge under the general permit submit a 
Notice of Intent (NOI) consistent with Sec.  122.33(b)(1)(ii).
    (ii) The Director must review the NOI submitted by the small MS4 
operator to determine whether the information in the NOI is complete 
and to establish the additional terms and conditions necessary to meet 
the requirements of Sec.  122.34. The Director may require the small 
MS4 operator to submit additional information. If the Director makes a 
preliminary decision to authorize the small MS4 operator to discharge 
under the general permit, the Director must give the public notice of 
and opportunity to comment and request a public hearing on its proposed 
authorization and the NOI, the proposed additional terms and 
conditions, and the basis for these additional requirements. The public 
notice, the process for submitting public comments and hearing 
requests, and the hearing process if a request for a hearing is 
granted, must follow the procedures applicable to draft permits set 
forth in Sec. Sec.  124.10 through 124.13 (excluding Sec.  
124.10(c)(2)). The Director must respond to significant comments 
received during the comment period as provided in Sec.  124.17.
    (iii) Upon authorization for the MS4 to discharge under the general 
permit, the final additional terms and conditions applicable to the MS4 
operator become effective. The Director must notify the permittee and 
inform the public of the decision to authorize the MS4 to discharge 
under the general permit and of the final additional terms and 
conditions specific to the MS4.

0
3. Revise Sec.  122.33 to read as follows:


Sec.  122.33  Requirements for obtaining permit coverage for regulated 
small MS4s.

    (a) The operator of any regulated small MS4 under Sec.  122.32 must 
seek coverage under an NPDES permit issued by the applicable NPDES 
permitting authority. If the small MS4 is located in an NPDES 
authorized State, Tribe, or Territory, then that State, Tribe, or 
Territory is the NPDES permitting authority. Otherwise, the NPDES 
permitting authority is the EPA Regional Office for the Region where 
the small MS4 is located.
    (b) The operator of any regulated small MS4 must seek authorization 
to discharge under a general or individual NPDES permit, as follows:
    (1) General permit. (i) If seeking coverage under a general permit 
issued by the NPDES permitting authority in accordance with Sec.  
122.28(d)(1), the small MS4 operator must submit a Notice of Intent 
(NOI) to the NPDES permitting authority consistent with Sec.  
122.28(b)(2). The small MS4 operator may file its own NOI, or the small 
MS4 operator and other municipalities or governmental entities may 
jointly submit an NOI. If the small MS4 operator wants to share 
responsibilities for meeting the minimum measures with other 
municipalities or governmental entities, the small MS4 operator must 
submit an NOI that describes which minimum measures it will implement 
and identify the entities that will implement the other minimum 
measures within the area served by the MS4. The general permit will 
explain any other steps necessary to obtain permit authorization.

[[Page 89349]]

    (ii) If seeking coverage under a general permit issued by the NPDES 
permitting authority in accordance with Sec.  122.28(d)(2), the small 
MS4 operator must submit an NOI to the Director consisting of the 
minimum required information in Sec.  122.28(b)(2)(ii), and any other 
information the Director identifies as necessary to establish 
additional terms and conditions that satisfy the permit requirements of 
Sec.  122.34, such as the information required under Sec.  
122.33(b)(2)(i). The general permit will explain any other steps 
necessary to obtain permit authorization.
    (2) Individual permit. (i) If seeking authorization to discharge 
under an individual permit to implement a program under Sec.  122.34, 
the small MS4 operator must submit an application to the appropriate 
NPDES permitting authority that includes the information required under 
Sec.  122.21(f) and the following:
    (A) The best management practices (BMPs) that the small MS4 
operator or another entity proposes to implement for each of the storm 
water minimum control measures described in Sec.  122.34(b)(1) through 
(6);
    (B) The proposed measurable goals for each of the BMPs including, 
as appropriate, the months and years in which the small MS4 operator 
proposes to undertake required actions, including interim milestones 
and the frequency of the action;
    (C) The person or persons responsible for implementing or 
coordinating the storm water management program;
    (D) An estimate of square mileage served by the small MS4;
    (E) Any additional information that the NPDES permitting authority 
requests; and
    (F) A storm sewer map that satisfies the requirement of Sec.  
122.34(b)(3)(i) satisfies the map requirement in Sec.  122.21(f)(7).
    (ii) If seeking authorization to discharge under an individual 
permit to implement a program that is different from the program under 
Sec.  122.34, the small MS4 operator must comply with the permit 
application requirements in Sec.  122.26(d). The small MS4 operator 
must submit both parts of the application requirements in Sec.  
122.26(d)(1) and (2). The small MS4 operator must submit the 
application at least 180 days before the expiration of the small MS4 
operator's existing permit. Information required by Sec.  
122.26(d)(1)(ii) and (d)(2) regarding its legal authority is not 
required, unless the small MS4 operator intends for the permit writer 
to take such information into account when developing other permit 
conditions.
    (iii) If allowed by your NPDES permitting authority, the small MS4 
operator and another regulated entity may jointly apply under either 
paragraph (b)(2)(i) or (ii) of this section to be co-permittees under 
an individual permit.
    (3) Co-permittee alternative. If the regulated small MS4 is in the 
same urbanized area as a medium or large MS4 with an NPDES storm water 
permit and that other MS4 is willing to have the small MS4 operator 
participate in its storm water program, the parties may jointly seek a 
modification of the other MS4 permit to include the small MS4 operator 
as a limited co-permittee. As a limited co-permittee, the small MS4 
operator will be responsible for compliance with the permit's 
conditions applicable to its jurisdiction. If the small MS4 operator 
chooses this option it must comply with the permit application 
requirements of Sec.  122.26, rather than the requirements of Sec.  
122.33(b)(2)(i). The small MS4 operator does not need to comply with 
the specific application requirements of Sec.  122.26(d)(1)(iii) and 
(iv) and (d)(2)(iii) (discharge characterization). The small MS4 
operator may satisfy the requirements in Sec.  122.26 (d)(1)(v) and 
(d)(2)(iv) (identification of a management program) by referring to the 
other MS4's storm water management program.
    (4) Guidance for paragraph (b)(3) of this section. In referencing 
the other MS4 operator's storm water management program, the small MS4 
operator should briefly describe how the existing program will address 
discharges from the small MS4 or would need to be supplemented in order 
to adequately address the discharges. The small MS4 operator should 
also explain its role in coordinating storm water pollutant control 
activities in the MS4, and detail the resources available to the small 
MS4 operator to accomplish the program.
    (c) If the regulated small MS4 is designated under Sec.  
122.32(a)(2), the small MS4 operator must apply for coverage under an 
NPDES permit, or apply for a modification of an existing NPDES permit 
under paragraph (b)(3) of this section, within 180 days of notice of 
such designation, unless the NPDES permitting authority grants a later 
date.

0
4. Revise Sec.  122.34 to read as follows:


Sec.  122.34  Permit requirements for regulated small MS4 permits.

    (a) General requirements. For any permit issued to a regulated 
small MS4, the NPDES permitting authority must include permit terms and 
conditions to reduce the discharge of pollutants from the MS4 to the 
maximum extent practicable (MEP), to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. Terms and conditions that satisfy the requirements of this section 
must be expressed in clear, specific, and measurable terms. Such terms 
and conditions may include narrative, numeric, or other types of 
requirements (e.g., implementation of specific tasks or best management 
practices (BMPs), BMP design requirements, performance requirements, 
adaptive management requirements, schedules for implementation and 
maintenance, and frequency of actions).
    (1) For permits providing coverage to any small MS4s for the first 
time, the NPDES permitting authority may specify a time period of up to 
5 years from the date of permit issuance for the permittee to fully 
comply with the conditions of the permit and to implement necessary 
BMPs.
    (2) For each successive permit, the NPDES permitting authority must 
include terms and conditions that meet the requirements of this section 
based on its evaluation of the current permit requirements, record of 
permittee compliance and program implementation progress, current water 
quality conditions, and other relevant information.
    (b) Minimum control measures. The permit must include requirements 
that ensure the permittee implements, or continues to implement, the 
minimum control measures in paragraphs (b)(1) through (6) of this 
section during the permit term. The permit must also require a written 
storm water management program document or documents that, at a 
minimum, describes in detail how the permittee intends to comply with 
the permit's requirements for each minimum control measure.
    (1) Public education and outreach on storm water impacts. (i) The 
permit must identify the minimum elements and require implementation of 
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 the public 
can take to reduce pollutants in storm water runoff.
    (ii) Guidance for NPDES permitting authorities and regulated small 
MS4s: The permittee may use storm water educational materials provided 
by the State, Tribe, EPA, environmental, public interest or trade 
organizations, or other MS4s. The public education program

[[Page 89350]]

should inform individuals and households about the steps they can take 
to reduce storm water pollution, such as ensuring proper septic system 
maintenance, ensuring the proper use and disposal of landscape and 
garden chemicals including fertilizers and pesticides, protecting and 
restoring riparian vegetation, and properly disposing of used motor oil 
or household hazardous wastes. EPA recommends that the program inform 
individuals and groups how to become involved in local stream and beach 
restoration activities as well as activities that are coordinated by 
youth service and conservation corps or other citizen groups. EPA 
recommends that the permit require the permittee to tailor the public 
education program, using a mix of locally appropriate strategies, to 
target specific audiences and communities. Examples of strategies 
include distributing brochures or fact sheets, sponsoring speaking 
engagements before community groups, providing public service 
announcements, implementing educational programs targeted at school age 
children, and conducting community-based projects such as storm drain 
stenciling, and watershed and beach cleanups. In addition, EPA 
recommends that the permit require that some of the materials or 
outreach programs be directed toward targeted groups of commercial, 
industrial, and institutional entities likely to have significant storm 
water impacts. For example, providing information to restaurants on the 
impact of grease clogging storm drains and to garages on the impact of 
oil discharges. The permit should encourage the permittee to tailor the 
outreach program to address the viewpoints and concerns of all 
communities, particularly minority and disadvantaged communities, as 
well as any special concerns relating to children.
    (2) Public involvement/participation. (i) The permit must identify 
the minimum elements and require implementation of a public 
involvement/participation program that complies with State, Tribal, and 
local public notice requirements.
    (ii) Guidance for NPDES permitting authorities and regulated small 
MS4s: EPA recommends that the permit include provisions addressing the 
need for the public to be included in developing, implementing, and 
reviewing the storm water management program and that the public 
participation process should make efforts to reach out and engage all 
economic and ethnic groups. Opportunities for members of the public to 
participate in program development and implementation 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. (Citizens should obtain approval where necessary 
for lawful access to monitoring sites.)
    (3) Illicit discharge detection and elimination. (i) The permit 
must identify the minimum elements and require the development, 
implementation, and enforcement of a program to detect and eliminate 
illicit discharges (as defined at Sec.  122.26(b)(2)) into the small 
MS4. At a minimum, the permit must require the permittee to:
    (A) Develop, if not already completed, a storm sewer system map, 
showing the location of all outfalls and the names and location of all 
waters of the United States that receive discharges from those 
outfalls;
    (B) To the extent allowable under State, Tribal or local law, 
effectively prohibit, through ordinance, or other regulatory mechanism, 
non-storm water discharges into the storm sewer system and implement 
appropriate enforcement procedures and actions;
    (C) Develop and implement a plan to detect and address non-storm 
water discharges, including illegal dumping, to the system; and
    (D) Inform public employees, businesses, and the general public of 
hazards associated with illegal discharges and improper disposal of 
waste.
    (ii) The permit must also require the permittee to address the 
following categories of non-storm water discharges or flows (i.e., 
illicit discharges) only if the permittee identifies them as a 
significant contributor of pollutants to the small MS4: Water line 
flushing, landscape irrigation, diverted stream flows, rising ground 
waters, uncontaminated ground water infiltration (as defined at 40 CFR 
35.2005(b)(20)), 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 (discharges or flows from 
firefighting activities are excluded from the effective prohibition 
against non-storm water and need only be addressed where they are 
identified as significant sources of pollutants to waters of the United 
States).
    (iii) Guidance for NPDES permitting authorities and regulated small 
MS4s: EPA recommends that the permit require the plan to detect and 
address illicit discharges include the following four components: 
Procedures for locating priority areas likely to have illicit 
discharges; procedures for tracing the source of an illicit discharge; 
procedures for removing the source of the discharge; and procedures for 
program evaluation and assessment. EPA recommends that the permit 
require the permittee to visually screen outfalls during dry weather 
and conduct field tests of selected pollutants as part of the 
procedures for locating priority areas. Illicit discharge education 
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. (i) The permit 
must identify the minimum elements and require the development, 
implementation, and enforcement of a program to reduce pollutants in 
any storm water runoff to the small MS4 from construction activities 
that result in a land disturbance of greater than or equal to one acre. 
Reduction of storm water discharges from construction activity 
disturbing less than one acre must be included in the program if that 
construction activity is part of a larger common plan of development or 
sale that would disturb one acre or more. If the Director waives 
requirements for storm water discharges associated with small 
construction activity in accordance with Sec.  122.26(b)(15)(i), the 
permittee is not required to develop, implement, and/or enforce a 
program to reduce pollutant discharges from such sites. At a minimum, 
the permit must require the permittee to develop and implement:
    (A) An ordinance or other regulatory mechanism to require erosion 
and sediment controls, as well as sanctions to ensure compliance, to 
the extent allowable under State, Tribal, or local law;
    (B) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (C) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, 
chemicals, litter, and sanitary waste at the construction site that may 
cause adverse impacts to water quality;

[[Page 89351]]

    (D) Procedures for site plan review which incorporate consideration 
of potential water quality impacts;
    (E) Procedures for receipt and consideration of information 
submitted by the public, and
    (F) Procedures for site inspection and enforcement of control 
measures.
    (ii) Guidance for NPDES permitting authorities and regulated small 
MS4s: Examples of sanctions to ensure compliance include non-monetary 
penalties, fines, bonding requirements and/or permit denials for non-
compliance. EPA recommends that the procedures for site plan review 
include the review of individual pre-construction site plans to ensure 
consistency with local sediment and erosion control requirements. 
Procedures for site inspections and enforcement of control measures 
could include steps to identify priority sites for inspection and 
enforcement based on the nature of the construction activity, 
topography, and the characteristics of soils and receiving water 
quality. EPA also recommends that the permit require the permittee to 
provide appropriate educational and training measures for construction 
site operators, and require storm water pollution prevention plans for 
construction sites within the MS4's jurisdiction that discharge into 
the system. See Sec.  122.44(s) (NPDES permitting authorities' option 
to incorporate qualifying State, Tribal and local erosion and sediment 
control programs into NPDES permits for storm water discharges from 
construction sites). Also see Sec.  122.35(b) (The NPDES permitting 
authority may recognize that another government entity, including the 
NPDES permitting authority, may be responsible for implementing one or 
more of the minimum measures on the permittee's behalf).
    (5) Post-construction storm water management in new development and 
redevelopment. (i) The permit must identify the minimum elements and 
require the development, implementation, and enforcement of a program 
to address storm water runoff from new development and redevelopment 
projects that disturb greater than or equal to one acre, including 
projects less than one acre that are part of a larger common plan of 
development or sale, that discharge into the small MS4. The permit must 
ensure that controls are in place that would prevent or minimize water 
quality impacts. At a minimum, the permit must require the permittee 
to:
    (A) Develop and implement strategies which include a combination of 
structural and/or non-structural best management practices (BMPs) 
appropriate for the community;
    (B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to 
the extent allowable under State, Tribal or local law; and
    (C) Ensure adequate long-term operation and maintenance of BMPs.
    (ii) Guidance for NPDES permitting authorities and regulated small 
MS4s: If water quality impacts are considered from the beginning stages 
of a project, new development and potentially redevelopment provide 
more opportunities for water quality protection. EPA recommends that 
the permit ensure that BMPs included in the program: Be appropriate for 
the local community; minimize water quality impacts; and attempt to 
maintain pre-development runoff conditions. EPA encourages the 
permittee to participate in locally-based watershed planning efforts 
which attempt to involve a diverse group of stakeholders including 
interested citizens. When developing a program that is consistent with 
this measure's intent, EPA recommends that the permit require the 
permittee to adopt a planning process that identifies the 
municipality's program goals (e.g., minimize water quality impacts 
resulting from post-construction runoff from new development and 
redevelopment), implementation strategies (e.g., adopt a combination of 
structural and/or non-structural BMPs), operation and maintenance 
policies and procedures, and enforcement procedures. In developing the 
program, the permit should also require the permittee to assess 
existing ordinances, policies, programs and studies that address storm 
water runoff quality. In addition to assessing these existing documents 
and programs, the permit should require the permittee to provide 
opportunities to the public to participate in the development of the 
program. Non-structural BMPs are preventative actions that involve 
management and source controls such as: Policies and ordinances that 
provide requirements and standards to direct growth to identified 
areas, protect sensitive areas such as wetlands and riparian areas, 
maintain and/or increase open space (including a dedicated funding 
source for open space acquisition), provide buffers along sensitive 
water bodies, minimize impervious surfaces, and minimize disturbance of 
soils and vegetation; policies or ordinances that encourage infill 
development in higher density urban areas, and areas with existing 
infrastructure; education programs for developers and the public about 
project designs that minimize water quality impacts; and measures such 
as minimization of percent impervious area after development and 
minimization of directly connected impervious areas. Structural BMPs 
include: Storage practices such as wet ponds and extended-detention 
outlet structures; filtration practices such as grassed swales, sand 
filters and filter strips; and infiltration practices such as 
infiltration basins and infiltration trenches. EPA recommends that the 
permit ensure the appropriate implementation of the structural BMPs by 
considering some or all of the following: Pre-construction review of 
BMP designs; inspections during construction to verify BMPs are built 
as designed; post-construction inspection and maintenance of BMPs; and 
penalty provisions for the noncompliance with design, construction or 
operation and maintenance. Storm water technologies are constantly 
being improved, and EPA recommends that the permit requirements be 
responsive to these changes, developments or improvements in control 
technologies.
    (6) Pollution prevention/good housekeeping for municipal 
operations. (i) The permit must identify the minimum elements and 
require the development and implementation of an operation and 
maintenance program that includes a training component and has the 
ultimate goal of preventing or reducing pollutant runoff from municipal 
operations. Using training materials that are available from EPA, the 
State, Tribe, or other organizations, the program must include employee 
training to prevent and reduce storm water pollution from activities 
such as park and open space maintenance, fleet and building 
maintenance, new construction and land disturbances, and storm water 
system maintenance.
    (ii) Guidance for NPDES permitting authorities and regulated small 
MS4s: EPA recommends that the permit address the following: Maintenance 
activities, maintenance schedules, and long-term inspection procedures 
for structural and non-structural storm water controls to reduce 
floatables and other pollutants discharged from the separate storm 
sewers; controls for reducing or eliminating the discharge of 
pollutants from streets, roads, highways, municipal parking lots, 
maintenance and storage yards, fleet or maintenance shops with outdoor 
storage areas, salt/sand storage locations and snow disposal areas 
operated by the permittee, and waste transfer stations; procedures for 
properly disposing of waste removed from the separate storm

[[Page 89352]]

sewers 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. Operation and maintenance should be an 
integral component of all storm water management programs. This measure 
is intended to improve the efficiency of these programs and require new 
programs where necessary. Properly developed and implemented operation 
and maintenance programs reduce the risk of water quality problems.
    (c) Other applicable requirements. As appropriate, the permit will 
include:
    (1) More stringent terms and conditions, including permit 
requirements that modify, or are in addition to, the minimum control 
measures based on an approved total maximum daily load (TMDL) or 
equivalent analysis, or where the Director determines such terms and 
conditions are needed to protect water quality.
    (2) Other applicable NPDES permit requirements, standards and 
conditions established in the individual or general permit, developed 
consistent with the provisions of Sec. Sec.  122.41 through 122.49.
    (d) Evaluation and assessment requirements--(1) Evaluation. The 
permit must require the permittee to evaluate compliance with the terms 
and conditions of the permit, including the effectiveness of the 
components of its storm water management program, and the status of 
achieving the measurable requirements in the permit.

    Note to paragraph (d)(1): The NPDES permitting authority may 
determine monitoring requirements for the permittee in accordance 
with State/Tribal monitoring plans appropriate to the watershed. 
Participation in a group monitoring program is encouraged.

    (2) Recordkeeping. The permit must require that the permittee keep 
records required by the NPDES permit for at least 3 years and submit 
such records to the NPDES permitting authority when specifically asked 
to do so. The permit must require the permittee to make records, 
including a written description of the storm water management program, 
available to the public at reasonable times during regular business 
hours (see Sec.  122.7 for confidentiality provision). (The permittee 
may assess a reasonable charge for copying. The permit may allow the 
permittee to require a member of the public to provide advance notice.)
    (3) Reporting. Unless the permittee is relying on another entity to 
satisfy its NPDES permit obligations under Sec.  122.35(a), the 
permittee must submit annual reports to the NPDES permitting authority 
for its first permit term. For subsequent permit terms, the permittee 
must submit reports in year two and four unless the NPDES permitting 
authority requires more frequent reports. As of December 21, 2020 all 
reports submitted in compliance with this section must be submitted 
electronically by the owner, operator, or the duly authorized 
representative of the small MS4 to the NPDES permitting authority or 
initial recipient, as defined in 40 CFR 127.2(b), in compliance with 
this section and 40 CFR part 3 (including, in all cases, subpart D to 
part 3), Sec.  122.22, and 40 CFR part 127. Part 127 is not intended to 
undo existing requirements for electronic reporting. Prior to this 
date, and independent of part 127, the owner, operator, or the duly 
authorized representative of the small MS4 may be required to report 
electronically if specified by a particular permit or if required to do 
so by state law. The report must include:
    (i) The status of compliance with permit terms and conditions;
    (ii) Results of information collected and analyzed, including 
monitoring data, if any, during the reporting period;
    (iii) A summary of the storm water activities the permittee 
proposes to undertake to comply with the permit during the next 
reporting cycle;
    (iv) Any changes made during the reporting period to the 
permittee's storm water management program; and
    (v) Notice that the permittee is relying on another governmental 
entity to satisfy some of the permit obligations (if applicable), 
consistent with Sec.  122.35(a).
    (e) Qualifying local program. If an existing qualifying local 
program requires the permittee to implement one or more of the minimum 
control measures of paragraph (b) of this section, the NPDES permitting 
authority may include conditions in the NPDES permit that direct the 
permittee to follow that qualifying program's requirements rather than 
the requirements of paragraph (b). A qualifying local program is a 
local, State or Tribal municipal storm water management program that 
imposes, at a minimum, the relevant requirements of paragraph (b).

0
5. Amend Sec.  122.35 by revising the section heading and paragraph (a) 
to read as follows:


Sec.  122.35  May the operator of a regulated small MS4 share the 
responsibility to implement the minimum control measures with other 
entities?

    (a) The permittee may rely on another entity to satisfy its NPDES 
permit obligations to implement a minimum control measure if:
    (1) The other entity, in fact, implements the control measure;
    (2) The particular control measure, or component thereof, is at 
least as stringent as the corresponding NPDES permit requirement; and
    (3) The other entity agrees to implement the control measure on the 
permittee's behalf. In the reports, the permittee must submit under 
Sec.  122.34(d)(3), the permittee must also specify that it is relying 
on another entity to satisfy some of the permit obligations. If the 
permittee is relying on another governmental entity regulated under 
section 122 to satisfy all of the permit obligations, including the 
obligation to file periodic reports required by Sec.  122.34(d)(3), the 
permittee must note that fact in its NOI, but the permittee is not 
required to file the periodic reports. The permittee remains 
responsible for compliance with the permit obligations if the other 
entity fails to implement the control measure (or component thereof). 
Therefore, EPA encourages the permittee to enter into a legally binding 
agreement with that entity if the permittee wants to minimize any 
uncertainty about compliance with the permit.
* * * * *

[FR Doc. 2016-28426 Filed 12-8-16; 8:45 am]
 BILLING CODE 6560-50-P