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

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

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

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

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

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

``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

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

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

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

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

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

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.

    (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

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;

    (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

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