[Federal Register Volume 81, Number 3 (Wednesday, January 6, 2016)]
[Proposed Rules]
[Pages 415-435]
[FR Doc No: 2015-33174]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2015-0671; FRL-9939-88-OW]
RIN 2040-AF57

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing changes
to the regulations governing small municipal separate storm sewer
system (MS4) permits to respond to a remand from the United States
Court of Appeals for the Ninth Circuit in Environmental Defense Center,
et al. v. EPA, 344 F.3d 832 (9th Cir. 2003). In that decision, the
court determined that the regulations for providing coverage under
small MS4 general permits did not provide for adequate public notice
and opportunity to request a hearing. Additionally, the court found
that EPA failed to require permitting authority review of the best
management practices (BMPs) to be used at a particular MS4 to ensure
that the small MS4 permittee reduces pollutants in the discharge from
their systems to the ``maximum extent practicable'' (MEP), the standard
established by the Clean Water Act for such permits. EPA's proposal
would revise the small MS4 regulations to ensure that the permitting
authority determines the adequacy of BMPs and other requirements and
provides public notice and the opportunity to request a public hearing
on the requirements for each MS4. The proposal would not establish any
new substantive requirements for small MS4s.

DATES: Comments must be received on or before March 21, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0671, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or withdrawn. EPA
may publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e. on the web, cloud, or
other file sharing system). For additional submission methods, the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Office of Wastewater
Management, Water Permits Division (M4203), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone
number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
II. Background
    A. Statutory and Regulatory Overview
    B. MS4 Permitting Requirements
III. Judicial Review of the Phase II Rule and Partial Remand
    A. Decision in Environmental Defense Center et al. v. EPA
    B. EPA Action Following the Partial Remand of the Phase II Rule
IV. Scope of This Rulemaking
V. EPA's Evaluation and Selection of Rulemaking Options
    A. Current Permitting Authority Practice
    B. Description of Process Used To Evaluate Options
    C. Considerations in Evaluating Options
    1. Permitting Authority Review
    2. Public Participation Requirements
    3. Other Factors Considered
VI. Analysis of Options for Proposal
    A. Option 1--The Traditional General Permit Approach
    1. Current Examples of Clear, Specific, and Measurable Permit
Requirements
    2. Types of Permit Language Lacking Sufficient Detail To Qualify
as Clear, Specific, and Measurable
    3. Summary/Description of Proposed Rule Changes
    B. Option 2--Procedural Approach
    C. Option 3--State Choice Approach
VII. Incremental Costs of Proposed Rule Options
VIII. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. Does this action apply to me?

    Entities potentially regulated by this proposed action include:

------------------------------------------------------------------------
                                                               North
                                                             American
                                  Examples of regulated      Industry
            Category                     entities         Classification
                                                               System
                                                           (NAICS) code
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Federal and state government...  EPA or state NPDES               924110
                                  stormwater permitting
                                  authorities.

Local governments..............  Operators of small               924110
                                  municipal separate
                                  storm sewer systems.
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    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated or otherwise affected by this action.
Other types of entities not listed in the table could also be
regulated. To determine whether your entity is regulated by this
action, you should carefully examine the applicability criteria found
in Sec.  122.32 title 40 of the Code of Federal Regulations, and the
discussion in the preamble. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the agency taking?

    EPA is proposing a change to its regulations governing the way in
which small MS4s obtain coverage under National Pollutant Discharge
Elimination System (NPDES) general permits. The proposal results from a
decision by the Ninth Circuit U.S. Court of Appeals in Environmental
Defense Center, et al. v. EPA, in 344 F.3d 832 (9th Cir. 2003) (``EDC
decision''), which found that EPA regulations for obtaining coverage
under a small MS4 general permit did not provide for adequate public
notice, the opportunity to request a hearing, or permit authority
review to determine whether the BMPs selected by each MS4 in its
stormwater management program (SWMP) meets the Clean Water Act (CWA)
requirements including the requirement to ``reduce pollutants to the
maximum extent practicable.'' The preamble discusses two options for
addressing the remand, and a third option that is a hybrid of the two
alternatives. One option (called the ``Traditional General Permit
Approach'') would align the process for issuing small MS4 general
permits with the way NPDES general permits are issued for other
categories of discharges. This would entail requiring the permitting
authority to establish within the permit all requirements that MS4s
must meet within the term of the general permit to meet the standard
applicable to MS4s (to reduce pollutants to the MEP, to protect water
quality, and to satisfy the appropriate water quality requirements of
the CWA), which would be subject to public notice and comment and an
opportunity to request a hearing. A second option (called the
``Procedural Approach'') would add procedural requirements to the
existing rule structure that would require the MS4 to inform the
permitting authority in its Notice of Intent (NOI) to be covered by the
permit of the BMPs it would undertake through its SWMP. Under the
Procedural Approach, the public would be given an opportunity to
comment on the proposed BMPs and request a hearing, and the permitting
authority would have the opportunity to require changes to the proposed
BMPs before the permitting authority authorizes a discharge under the
general permit. A third option (called the ``State Choice Approach'')
would enable the permitting authority to choose between the Traditional
General Permit and Procedural Approaches, or to implement a combination
of these approaches in issuing and authorizing coverage under a general
permit.

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

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

II. Background

A. Statutory and Regulatory Overview

    Stormwater discharges are a significant cause of water quality
impairment because they contain a variety of pollutants such as
sediment, nutrients, chlorides, pathogens, metals, and trash.
Furthermore, the increased volume and velocity of stormwater discharges
that result from the creation of impervious cover can alter streams and
rivers by causing scouring and erosion. These surface water impacts
threaten public health and safety due to flooding and pollutants; lead
to economic losses to property and fishing industries; increase
drinking water treatment costs; and decrease opportunities for
recreation, swimming, and wildlife uses.
    Stormwater discharges are subject to regulation under section
402(p) of the CWA. Under this provision, Congress required only the
following stormwater discharges to be subject to NPDES permitting
requirements: Stormwater discharges for which NPDES permits were issued
prior to February 4, 1987; discharges ``associated with industrial
activity''; discharges from MS4s serving populations of 100,000 or
more; and any stormwater discharge determined by EPA or a state to
``contribute . . . to a violation of a water quality standard or to be
a significant contributor of pollutants to waters of the United
States.'' With respect to MS4s, section 402(p)(3)(B) provides that
NPDES permits may be issued on a system-wide or jurisdiction-wide
basis, and requires that MS4 NPDES permits ``include a requirement to
effectively prohibit non-stormwater discharges into the storm sewers''
and require ``controls to reduce the discharge of pollutants to the
maximum extent practicable . . . and such other provisions as the
Administrator or the State determines appropriate for the control of
such pollutants.''
    EPA developed the stormwater regulations under section 402(p) in
two phases, as directed by the statute. In the first phase, under
section 402(p)(4), EPA promulgated regulations establishing application
and other requirements for NPDES permits for stormwater discharges from
medium (serving populations of 100,000 to 250,000) and large (serving
populations of 250,000 or more) MS4s, and stormwater discharges
associated with industrial activity. EPA published the final Phase I
rule on November 16, 1990 (55 FR 47990).
    The Phase I rule, among other things, defined ``municipal separate
storm sewer'' as publicly-owned conveyances or systems of conveyances
that discharge to waters of the U.S. and are designed or used for
collecting or conveying stormwater, are not combined sewers, and are
not part of a publicly-owned treatment works at 40 CFR 122.26(b)(8).
EPA included construction sites disturbing five acres or more in the
definition of ``stormwater discharges associated with industrial
activity'' at 40 CFR 122.26(b)(14)(x).
    In the second phase, under section 402(p)(5) and (6), EPA was
required to conduct a study to identify other stormwater discharges
that needed further controls ``to protect water

quality,'' report to Congress on the results of the study, and to
designate for regulation additional categories of stormwater discharges
not regulated in Phase I on the basis of the study and in consultation
with state and local officials. EPA promulgated the Phase II rule on
December 8, 1999, designating discharges from certain small MS4s and
from small construction sites (disturbing equal to or greater than one
acre and less than five acres) and requiring NPDES permits for these
discharges (64 FR 68722, December 8, 1999). A regulated small MS4 is
generally defined as any MS4 that is not already covered by the Phase I
program and that is located within the urbanized area boundary as
determined by the latest U.S. Decennial Census. Separate storm sewer
systems such as those serving military bases, universities, large
hospital or prison complexes, and highways are also included in the
definition of ``small MS4.'' 40 CFR 122.26(b)(16). In addition, the
Phase II rule includes authority for EPA (or states authorized to
administer the NPDES program) to require NPDES permits for currently
unregulated stormwater discharges by a designation process. 40 CFR
122.26(a)(9)(i)(C) and (D). Other small MS4s located outside of an
urbanized area may be designated as a regulated small MS4 if the NPDES
permitting authority determines that its discharges cause, or have the
potential to cause, an adverse impact on water quality. See 40 CFR
122.32(a)(2) and 123.35(b)(3).

B. MS4 Permitting Requirements

    The Phase I regulations are primarily application requirements that
identify components that must be addressed in applications for
individual permits from large and medium MS4s. The regulations at 40
CFR 122.26(d)(2)(iv) require these MS4s to develop a SWMP, which is
considered by EPA or the authorized state permitting authority when
establishing permit conditions to reduce pollutants to the MEP.
    Like the Phase I rule, the Phase II rule requires regulated small
MS4s to develop and implement SWMPs. 40 CFR 122.34(a) requires that
SWMPs be designed to reduce pollutants discharged from the MS4 ``to the
maximum extent practicable (MEP), to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act,'' and requires that the SWMPs include six ``minimum control
measures.'' The minimum control measures are: Public education and
outreach, public participation and involvement, illicit discharge
detection and elimination, construction site runoff control, post
construction runoff control, pollution prevention and good
housekeeping. 40 CFR 122.34(b). Under the Phase II rule, a regulated
small MS4 may seek coverage under an available general permit or may
apply for an individual permit. To be authorized to discharge under a
general permit, the rule requires submission of an NOI to be covered by
the general permit containing a description of the BMPs to be
implemented and the measurable goals for each of the BMPs, including
timing and frequency, as appropriate. 40 CFR 122.33(a)(1),
122.34(d)(1).
    EPA anticipated that under the first two or three permit cycles,
whether individual permits or general permits, BMP-based SWMPs
implementing the six minimum control measures would, if properly
implemented, ``be sufficiently stringent to protect water quality,
including water quality standards, so that additional, more stringent
and/or more prescriptive water quality based effluent limitations will
be unnecessary.'' (64 FR 68753, December 8, 1999). In the final Phase
II rule preamble, EPA also stated that it ``has intentionally not
provided a precise definition of MEP to allow maximum flexibility in
MS4 permitting. MS4s need the flexibility to optimize reductions in
storm water pollutants on a location-by-location basis. . . .
Therefore, each permittee will determine appropriate BMPs to satisfy
each of the six minimum control measures through an evaluative
process.'' (64 FR 68754, December 8, 1999).
    The Agency described this process in the preamble to the Phase II
rule as an ``iterative process'' of developing, implementing, and
improving stormwater control measures contained in SWMPs. As EPA
further stated in the preamble to the Phase II rule, ``MEP should
continually adapt to current conditions and BMP effectiveness and
should strive to attain water quality standards. Successive iterations
of the mix of BMPs and measurable goals will be driven by the objective
of assuring maintenance of water quality standards. . . . If, after
implementing the six minimum control measures there is still water
quality impairment associated with discharges from the MS4, after
successive permit terms the permittee will need to expand or better
tailor its BMPs within the scope of the six minimum control measures
for each subsequent permit.'' (64 FR 68754, December 8, 1999).

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

A. Decision in Environmental Defense Center et al. v. EPA

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

    The court therefore vacated and remanded ``those portions of the
Phase II Rule that address these procedural issues . . . so that EPA
may take appropriate action to comply with Clean Water Act.'' 344 F.3d.
at 858.

B. EPA Action Following the Partial Remand of the Phase II Rule

    EPA issued interim guidance to address the need for permitting
authority review of NOIs and to provide for public notice and
opportunity for public hearing in April 2004. This guidance memorandum,
Implementing the Partial Remand of the Stormwater Phase II Regulations
Regarding Notices of Intent and NPDES General Permitting for Phase II
MS4s, outlined recommendations as to how permitting authorities should
retroactively provide for public notice and the opportunity to request
a hearing, provided options for holding a public hearing if granting a
request, and highlighted ways to conduct appropriate review of NOIs
already submitted.\1\ The memorandum also provided guidance on ways to
ensure the requisite public notice and review opportunities and
permitting authority review of NOIs under new general permits. As a
result of the EDC decision, EPA Regions that issue NPDES permits have
taken various approaches to provide opportunity for public review. For
example, EPA Region 1, the permitting authority for Massachusetts and
New Hampshire, uses its Web site to post NOIs and notices of
availability for public comment, as well as the annual reports
submitted by each permitted MS4.\2\ EPA Region 6, the permitting
authority in New Mexico and in Indian Country in Oklahoma and New
Mexico, has established a Web site with information on how to submit
comments and opportunity to request a public hearing, and posts the NOI
and each MS4's SWMP on its Web site.\3\ EPA Region 10, the permitting
authority in Idaho, has only issued individual permits to small MS4s in
that state.
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    \1\ EPA. April 16, 2004. Memo from James Hanlon, Director,
Office of Wastewater Management to EPA Water Management Division
Directors in EPA Regions I-X. http://www.epa.gov/npdes/pubs/hanlonphase2apr14signed.pdf.
    \2\ http://www.epa.gov/region1/npdes/stormwater/2003-permit-archives.html.
    \3\ http://www.epa.gov/region6/water/npdes/sw/sms4/sms4noi.htm.
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    In addition, the EPA Regions and some authorized state permitting
authorities have included more specific and definitive requirements in
small MS4 general permits, rather than leaving the identification of
stormwater controls needed to reduce pollutants to the MEP, protect
water quality and meet the water quality requirements of the CWA up to
the permittees. In the time since promulgation of the Phase II rule and
the partial remand of the rule, permits for small MS4 discharges have
evolved, both to reflect the advancement and improvement in stormwater
management approaches and techniques and to reflect the need for the
specific requirements for compliance with the CWA to be incorporated
into MS4 permits. Please see Section V.A of this preamble for a
detailed discussion of current EPA and state permitting practices for
small MS4 NPDES permits.

IV. Scope of This Rulemaking

    The proposed revisions to the Phase II MS4 NPDES permitting
requirements are solely for the purpose of responding to the partial
remand of the Phase II rule in Environmental Defense Center v. U.S.
Environmental Protection Agency, 344 F.3d. 832 (9th Cir. 2003) with
respect to small MS4 general permits. To conform to the court's
decision, the rule needs to ensure that permitting authorities
determine what requirements are needed to reduce pollutants from each
permitted small MS4 ``to the maximum extent practicable (MEP), to
protect water quality, and to satisfy the appropriate water quality
requirements of the Clean Water Act,'' as currently required for small
MS4 permits under 40 CFR 122.34(a). The proposed rule must also require
NPDES permitting authorities to provide the public with the opportunity
to review, submit comments, and request a public hearing on these
requirements.
    EPA is not reopening any of the substantive requirements that were
promulgated in the Phase II rule (nor is EPA reopening or seeking
comment on any aspect of the Phase I rule, which is described in this
preamble for informational purposes only). In addition, EPA will
address the other aspect of the Ninth Circuit's remand regarding
possible regulation of stormwater discharges from forest roads in a
separate action.

V. EPA's Evaluation and Selection of Rulemaking Options

A. Current Permitting Authority Practice

    The EPA collected information on how NPDES permitting authorities
have been administering their small MS4 general permits in the years
since the EDC decision and the issuance of the EPA's guidance on
implementing the remand and compiled this information in a state-by-
state spreadsheet (titled Current NPDES Authority Practices in
Administering Small MS4 General Permits, EPA, 2015), which is available
in the docket for the proposed rule at http://www.regulations.gov under
Docket ID No. EPA-HQ-OW-2015-0671. This information provides a basis
for understanding how and to what degree different rule options would
affect the current MS4 general permit programs in different states.
    This research indicates that permitting authorities are using an
array of approaches to provide permit coverage to their small MS4s,
many of which are unique to the specific state. EPA's guidance
following the EDC decision suggested ways to implement a general permit
program that would be consistent with the court's ruling. As mentioned,
some states chose to develop more definitive general permits that do
not rely on MS4 identification of BMPs to establish requirements that
meet the applicable CWA standards. Other states require that each NOI
undergo individualized permitting authority review and a dedicated
public comment period prior to authorizing the discharge. Still other
states require the MS4 to provide for public notice and the opportunity
to submit comments on the NOI and the SWMP document being submitted.
Notwithstanding the disparity in approaches between NPDES authorities,
this information has equipped EPA with a sense of how the different
options under consideration would be implemented if promulgated, and
what types of adjustments may be necessary in some programs depending
on the rule approach that is adopted. EPA used the approaches being
implemented in certain states to inform the proposed rule options.
    Not surprisingly, general permits are used as the permitting
vehicle to authorize small MS4 discharges in the vast majority of
states (i.e., 43 of 50 states, which represents 94 percent of the 6789
permitted small MS4s). In the remaining states, individual permits are
issued to their small MS4 permittees. In the 43 states where general
permits are used, 26 of these permitting authorities make their NOIs
publicly available through a Web site or some other means, and 27
indicate that they provide a ``waiting period'' of some length between
the time the NOI is submitted and discharge authorization. Currently,
most states are not providing a second public comment period for
individual NOIs (in addition to the public comment period for the draft
general permit). However, 12 states have established such a comment
period. EPA notes that four states require the prospective small MS4
permittee to provide for its own public comment period for the NOI and,
in some cases, the SWMP. In 23 states, the permitting

authority requires the SWMP document to be submitted for review along
with the NOI; in 14 of these states, the permitting authority reviews
and approves the SMWP document. See Current NPDES Authority Practices
in Administering Small MS4 General Permits, EPA, 2015.
    EPA also found some states that have moved to develop general
permits with more clear and specific requirements as a way of cutting
down on the need for additional review procedures for individual NOIs.
For instance, rather than requiring NOIs with information on BMPs and
measurable goals, California and Washington include in their general
permits the specific tasks, milestones, and schedules that are to be
met by each permittee. Therefore, once coverage under the general
permit in these states is authorized, the enforceable components of the
permit are locked in place for each permittee, and the permitting
authority is no longer required to review the information submitted by
individual MS4s prior to authorizing the discharge. What matters is
whether the permittee is complying with the specific requirements of
the permit.

B. Description of Process Used To Evaluate Options

    EPA met separately with various categories of stakeholders during
the development of the proposed rulemaking. The purpose of these
meetings was to obtain individual feedback from stakeholders on the
type of regulatory changes that would best address the court remand,
and which would work best considering how Phase II general permits have
been administered to date. The following is a summary of what EPA
learned from these meetings.
    EPA participated in several meetings with the Association of Clean
Water Administrators and their member state stormwater coordinators,
and met with the Environmental Council of the States. Many state
permitting authority staff appeared receptive to the idea of clarifying
in the regulations that the general permit should define all of the
applicable requirements necessary to reduce the discharge of pollutants
from the MS4 to the MEP, to protect water quality, and to satisfy the
appropriate water quality requirements of the CWA. At the same time,
some state staff questioned how they would incorporate requirements
into their general permits in a way that would work for all MS4s within
their state, given the large number and diversity of the municipal
entities regulated. Other state staff indicated a concern for retaining
the correct balance between establishing detailed, prescriptive
requirements and providing flexibility where appropriate. There are
also a few state permitting authorities that are implementing an
approach similar to what is being described as the ``Procedural
Approach'' (see Section VI.B), and some expressed the interest in
finding a way in the proposed rule to accommodate this approach. Most
state permitting staff appeared concerned with the prospect of spending
additional time and resources to implement a procedural approach
requiring individualized review and public notice of all NOIs, as
discussed in the court's decision. Other state permitting staff
suggested exploring the concept of allowing permitting authorities to
choose which option to follow, without restricting the rule to one
approach. Alternatively, a few state permitting staff suggested that
permitting authorities be allowed to apply a hybrid of the two
approaches, whereby a state could implement one permit using the
Traditional General Permit Approach (e.g., for traditional MS4s) and
another permit using the Procedural Approach (e.g., for non-traditional
MS4s), or use a blend of the options for issuing a general permit and
authorizing coverage under the permit.
    EPA met with organizations representing state and local elected
officials, as well as with small MS4 permittees and organizations that
include small MS4s as members. MS4s, in particular, are interested in
retaining the flexibility of the existing Phase II regulations, where
they are able to make decisions on which BMPs are implemented locally
based on factors that are unique to their municipality and
environmental concerns. At the same time, many of these same MS4s
understand the need for permit requirements that are clear to all
parties and the public.
    EPA also met with representatives from a number of environmental,
non-profit organizations. Many of the representatives expressed an
interest in seeing the quality of small MS4 permits improve, and
appeared to be supportive of the concept of adopting the Traditional
General Approach as a way of addressing the remand. Asked at what point
in the current permitting process their organizations tend to provide
input, most indicated that they focus their attention on providing
comments at the proposed permit stage, as compared to submitting
comments on individual NOIs. That being said, a few representatives
indicated that they have submitted comments on individual NOIs
pertaining to the proposed water quality implementation plans of
several small MS4s.

C. Considerations in Evaluating Options

    Any option for responding to the remand must meet the CWA
requirements for public participation and transparency in section
402(b)(3), consistent with the Ninth Circuit's decision. When
individual permits are issued to small MS4s, the standard process for
issuing an NPDES permit applies. This process provides for public
participation and permitting authority determination as to what set of
permit terms and conditions satisfy the requirement to reduce the
discharge of pollutants from the MS4 to the MEP, to protect water
quality, and to meet the applicable water quality requirements of the
CWA. While the court's opinion focused on the Phase II rule's
requirement for the NOI to be covered by a general permit, and the
procedural steps that need to be taken with respect to the NOI in order
for the rule to comply with the CWA, the court's fundamental concern
was that the permitting authority must determine which MS4 permit
requirements are sufficient to reduce the discharge of pollutants to
the MEP, to protect water quality, and to satisfy the appropriate water
quality requirements of the CWA, and that the public have the
opportunity to review and comment on those permit requirements and to
request a hearing. For example, the court stated that ``every permit
must comply with the standards articulated by the Clean Water Act, and
unless every NOI issued under a general permit is reviewed, there is no
way to ensure that such compliance has been achieved.'' EDC v. EPA. 344
F.3d at 855, n. 32. Accordingly, EPA has determined that certain
factors must be met by any option to revise the rule, as discussed in
subsections 1 (Permitting Authority Review), 2 (Public Participation
Requirements), and 3 (Other Factors Considered).
1. Permitting Authority Review
    The court viewed the NOI as the document that identifies the
requirements necessary to meet the MEP standard: ``Because a Phase II
NOI establishes what the discharger will do to reduce discharges to the
`maximum extent practicable,' the Phase II NOI crosses the threshold
from being an item of procedural correspondence to being a substantive
component of a regulatory scheme.'' 344 F.3d at 853. As a result, the
role of the permitting authority to determine which requirements are
necessary to meet the applicable statutory standard is not, according
to the court, accomplished under this

scheme. In addition, the court observed that because 40 CFR 122.34(a)
in the 1999 Phase II rule states that compliance with the SWMP written
by the MS4 constitutes compliance with the MEP standard (without
providing for further action by the permitting authority), the
regulation put the MS4 in charge of establishing its own requirements.
``Therefore, under the Phase II Rule nothing prevents the operator of a
small MS4 from misunderstanding or misrepresenting its own stormwater
situation and proposing a set of minimum measures for itself that would
reduce discharges by far less than the maximum extent practicable.''
344 F.3d at 855.
    While EPA has always expected the permitting authority to establish
the necessary requirements for reducing discharges to the MEP,
protecting water quality, and satisfying the appropriate water quality
requirements of the CWA, the existing regulations do not fully address
the permitting authorities' responsibilities in this regard. To be
consistent with the court's decision, one criterion that any option
must meet is that it must ensure the permitting authority provides a
final determination on whether the requirements to which the MS4 is
subject, whether articulated fully in the permit itself or defined in
whole or part by the MS4 operator in the NOI, meet the NPDES
requirements to reduce discharges to the MEP, to protect water quality,
and to satisfy the appropriate water quality requirements of the Act.
2. Public Participation Requirements
    The court's other concern was that MS4s would choose what
requirements apply to them, without being subject to the public
participation procedures applicable to all NPDES permit applications
and permits, which is contrary to CWA section 402(b)(3). As discussed,
the court found the NOI to be the ``functional equivalent'' of a permit
application. The importance of the NOI as identified by the court was
that the NOI contained the requirements that would be considered to
meet the applicable standards and therefore this was the document that
needed to be subject to public notice. See 344 F.3d at 857. To be
consistent with the court's decision, any option chosen must provide
for public notice and the opportunity to request a public hearing on
what is considered necessary for a permitted MS4 to meet the
requirement to reduce discharges to the MEP, to protect water quality,
and to satisfy the appropriate water quality requirements of the CWA,
regardless of where those requirements are defined.
3. Other Factors Considered
    General permits are premised on the idea that the terms and
conditions of the permit are the same for all entities covered by the
general permit and that handling permitting for multiple entities in
one proceeding is more efficient. In the context of MS4 permits, the
Phase II rule sought to establish a general permit scheme that allows
each MS4 to address the specific conditions that prevail in its
jurisdiction. As stated in the Phase II preamble, ``The pollutant
reductions that represent MEP may be different for each small MS4,
given the unique local hydrologic and geologic concerns that may exist
and the differing possible pollutant control strategies. Therefore,
each permittee will determine appropriate BMPs to satisfy each of the
six minimum control measures through an evaluative process.'' (64 FR
68754, December 8, 1999). While the court clearly rejected EPA
regulations to the extent that the court found they established a
system of MS4 self-regulation, it also recognized the value in having
MS4 input on what it could do to meet the MEP standard. ``Involving
regulated parties in the development of individualized stormwater
pollution control programs is a laudable step . . . But EPA is still
required to ensure that the individual programs adopted are consistent
with the law.'' 344 F.3d at 856. There is a need for strong MS4 input
into the implementation of the program, and for that reason EPA made
flexibility an underlying principle of the Phase II regulations.
Individual permits provide the greatest ability to define MS4-specific
requirements and small MS4s always have the option of seeking an
individual permit if this would best accommodate their specific
circumstances. However, with over 94 percent of regulated small MS4s
currently covered by general permits, an important consideration for
this rulemaking is how to provide flexibility to MS4s while retaining
the general permit option in a manner that comports with the remand.
The challenge is to balance the flexibility provided to the MS4 to
determine how best it can meet the applicable regulatory requirements
with the permitting authorities' responsibility to ensure that the
terms and conditions to which MS4s will be held accountable are
adequate to reduce the discharge to the MEP, protect water quality, and
satisfy the appropriate water quality requirements of the CWA. In
selecting any regulatory option to comport with the court remand, EPA
will consider the need for maintaining this balance in light of the
nearly 15-year history of implementing the Phase II program, and the
considerable knowledge and expertise about implementing stormwater
controls that have emerged during that time.
    Another factor requiring consideration is the impact on existing
authorized NPDES state permitting programs. Currently 46 states and one
territory are authorized under section 402(b) to administer the NPDES
permit program in their jurisdictions. EPA recognizes that states have
limited resources and face different challenges in meeting the
permitting demands within their various NPDES programs. Immediately
after the EDC decision, EPA sought to provide state permitting
authorities with potential interim strategies that would balance the
need to move forward with implementing the Phase II program, while
acknowledging the need for state flexibility in how permitting
decisions need to be made. See Implementing the Partial Remand of the
Stormwater Phase II Regulations Regarding Notices of Intent & NPDES
General Permitting for Phase II MS4s (EPA, 2004).\4\ As discussed more
fully elsewhere in this preamble, authorized states [and EPA regional
permitting authorities] have taken a variety of approaches in response
to the court's decision (and in some cases, decisions by state courts)
and EPA guidance. A significant consideration in this rulemaking is the
extent to which states would need to make changes to comply with the
rule and consideration of the need to minimize disruption to existing
state programs, particularly for those states that have chosen
approaches that already comport with the EDC decision. EPA clarifies
that if, upon promulgation of the final rule, a state is already
implementing an approach that is consistent with the final rule EPA
would not expect that the permitting authority would need to make any
changes to its current approach. Similarly, it is EPA's intention that
permitting authorities that only issue individual permits to small MS4s
(e.g., EPA Region 10 in Idaho, Delaware, Michigan, and Oregon) would
not need to make any changes because the process for issuing individual
permits already encompasses the necessary permitting attributes found
missing in the Phase II regulations by the Ninth Circuit (i.e.,
permitting authority determination, public notice, and opportunity to
request a hearing). However, state permitting authorities that are
using general permits and are

currently not implementing strategies that address the core problems
found by the court will need to make some degree of change to their
general permit process for small MS4s to comply with the modified
regulations.
---------------------------------------------------------------------------

    \4\ See http://www.epa.gov/npdes/pubs/hanlonphase2apr14signed.pdf.
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VI. Analysis of Options for Proposal

    EPA is proposing three rule options for public comment, each of
which would address the Ninth Circuit remand. Each of these options
shares in common the fact that, as a result of the permitting process,
the permitting authority must determine which requirements a small MS4
must meet in order to satisfy the Phase II regulatory requirement ``to
reduce the discharge of pollutants from [the] MS4 to the maximum extent
practicable, to protect water quality, and to satisfy the appropriate
water quality requirement of the Clean Water Act.'' The key difference
between the options, especially between the ``Traditional General
Permit Approach'' (Option 1) and the ``Procedural Approach'' (Option
2), is that they make this determination at different points in time
during the permitting process. For Option 1 (the ``Traditional General
Permit Approach''), the determination as to what requirements are
needed to reduce the discharge of pollutants to the MEP, to protect
water quality, and to satisfy the appropriate water quality
requirements of the CWA is made as part of the initial issuance of the
general permit. By contrast, under Option 2 (the ``Procedural
Approach''), the permitting authority would make this determination
after reviewing each individual NOI and after public comment and the
opportunity for a hearing on the NOI. Each of these options is
described more fully in this section, as is a third option (the ``State
Choice Approach''), which would give the permitting authority the
discretion to determine whether it will administer Option1 or Option 2,
or a hybrid of options chosen for the final rule.

A. Option 1--Traditional General Permit Approach

    The ``Traditional General Permit Approach'' provides a mechanism
for addressing the procedural deficiencies identified by the court by
requiring all substantive permit requirements to be in the general
permit. The rationale behind the Traditional General Permit Approach is
that by requiring permitting authorities to include any and all
requirements that establish what is necessary to ``. . . reduce the
discharge of pollutants from the MS4 to the maximum extent practicable
(MEP), to protect water quality, and to satisfy the appropriating water
quality requirements of the Clean Water Act,'' the minimum required
procedural steps to issue a final general permit, including providing
public notice and the minimum 30-day comment period on the draft
permit, and the opportunity to request a public hearing, will fulfill
the permitting authority review and public participation requirements
of the CWA that the court found missing from the Phase II regulations.
    Under the proposed Traditional General Permit Approach, the NPDES
authority must establish in any small MS4 general permit the full set
of requirements that are deemed adequate ``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,'' and the administrative record
would explain the rationale for its determination. The permittee would
have the opportunity, as it always has had, to provide feedback on what
requirements are established in the general permit during the
development of the draft permit and to submit comments during the
public comment period. Furthermore, the permittee could continue to
have flexibility in determining how it will implement the permit
requirements based on considerations such as pollutant removal and cost
effectiveness. However, once the permit is issued, and the terms and
conditions in the permit are fixed for the term of the permit, neither
the development of a SWMP document nor the submittal of an NOI for
coverage would represent new permit requirements. In turn, because the
permit contains all of the requirements that will be used to assess
permittee compliance, the permitting authority would no longer need to
rely on the MS4's NOI as the mechanism for ascertaining what will occur
during the permit term. Under this approach, the function of the NOI
would be more similar to that of any other general permit NOI, and more
specifically other stormwater general permits, where the NOI is used to
establish certain minimum facts about the discharger, including the
operator's contact details, the discharge location(s), and confirmation
that the operator is eligible for permit coverage and has agreed to
comply with the terms of the permit. By removing the possibility that
effluent limits could be proposed in the NOI (and for that matter in
the SWMP) and made part of the permit once permit coverage is provided,
the NOI would no longer look and function like an individual permit
application, as the court found with respect to MS4 NOIs under the
Phase II regulations currently in effect. Therefore, it would not be
necessary to carry out the type of additional permitting authority
review and public participation steps contemplated by the court.
    Under the proposed Traditional General Permit Approach, 40 CFR
122.34(a) would be revised to expressly require the permitting
authority to articulate in sufficient detail in the permit what is
required to meet the minimum statutory and regulatory requirements, and
to ensure that the applicable requirements are enforceable and
understandable to the permittee and the public. A general permit would
need to make it clear to all what level of effort is expected of the
permittee during the permit term for each permit provision. These
proposed revisions to 40 CFR 122.34(a) respond to the court's finding
that under the Phase II rule, ``the operator of a small MS4 has
complied with the requirement of reducing discharges to the `maximum
extent practicable' when it implements its stormwater management
program, i.e., when it implements its Minimum Measures. 40 CFR
122.34(a).'' 344 F.3d at 856. The court continued, ``Nothing in the
Phase II regulations requires that NPDES permitting authorities review
these Minimum Measures to ensure that the measures that any given
operator of a small MS4 had decided to undertake will in fact reduce
discharges to the maximum extent practicable.'' 344 F.3d at 855. By
clearly shifting the decision as to what is needed to meet the MEP
standard and water quality requirements from the permittee to the
permitting authority, the Traditional General Permit Approach would
address the court's concern.
    EPA continues to view MEP as iterative, in that each successive
permit needs to define what is required to meet the MEP standard for
that permit term. The Traditional General Permit Approach would clarify
that the requirements for meeting MEP (and to protect water quality and
satisfy CWA water quality requirements) would be required to be
established in each successive permit by the permitting authority,
while the SWMP implemented by the MS4 would be a planning and
programmatic document that the MS4 would be able to update and revise
during the permit term as necessary to comply with the terms of the
permit. In other words, this option would make it clear that the SWMP
document would not contain enforceable requirements. Likewise, it would
be unnecessary for the NOI to

identify the BMPs selected in the SWMP for each minimum control measure
nor for it to undergo public or permitting authority review prior to
discharge authorization under the general permit.
    Moreover, it was never EPA's intent that the SWMP required by 40
CFR 122.34(a) itself be considered enforceable under the permit.
Rather, the SWMP was intended to be the means for the MS4 to engage in
an adaptive management process during the term of the permit. ``EPA
envisions application of the MEP standards as an iterative process. MEP
should continually adapt to current conditions and BMP effectiveness
and should strive to attain water quality standards.'' (64 FR 68754,
December 8, 1999).
    The Traditional General Permit Approach would include regulatory
text to reflect EPA's guidance to permitting authorities regarding the
types of permit requirements for MS4s that are considered most
effective. For instance, EPA advises permitting authorities to use
permit conditions that are ``clear, specific, and measurable.'' See MS4
Permit Improvement Guide \5\ (p. 5-6), and Revisions to the November
22, 2002 Memorandum Establishing Total Maximum Daily Load (TMDL)
Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit
Requirements Based on Those WLAs \6\ (p. 5). The MS4 Permit Improvement
Guide explains EPA's recommendation as follows:
---------------------------------------------------------------------------

    \5\ EPA. 2010. MS4 Permit Improvement Guide. Office of
Wastewater Management. Washington, DC. EPA 833-R-10-001. http://water.epa.gov/polwaste/npdes/stormwater/upload/ms4permit_improvement_guide.pdf.
    \6\ EPA. November 26, 2014. Memo from Andrew Sawyers, Director,
Office of Wastewater Management to EPA Water Management Division
Directors in EPA Regions I-X. http://water.epa.gov/polwaste/npdes/stormwater/upload/EPA_SW_TMDL_Memo.pdf.

    In order for permit language to be clear, specific, measurable
and enforceable, each Permit Requirement will ideally specify: What
needs to happen; Who needs to do it; How much they need to do; When
they need to get it done; and Where it is to be done.
    For each Permit Requirement: `What' is usually the stormwater
control measure or activity required. `Who' in most cases is implied
as the permittee (although in some cases the permitting authority
may need to specify who exactly will carry out the requirement if
there are co-permittees or the MS4 will rely on another entity to
implement one of the minimum control measures). `How much' is the
performance standard the permittee must meet (e.g., how many
inspections). `When' is a specific time (or a set frequency) when
the stormwater control measure or activity must be completed.
`Where' indicates the specific location or area (if necessary).
These questions will help determine compliance with the permit
requirement.

    The proposed rule for the Traditional General Permit Approach would
obligate the permitting authority to establish requirements that are
``clear, specific, and measurable.'' See proposed 40 CFR 122.34(a). The
proposed rule further explains that effluent limitations may be
expressed as BMPs that include, but are not limited to, ``specific
tasks, BMP design requirements, performance requirements or benchmarks,
schedules for implementation and maintenance, and frequency of
actions.'' Id. Where permits incorporate clear, specific, and
measurable requirements, EPA expects there to be greater certainty and
understanding as to what must be accomplished during each permit term.
    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. This principle is incorporated into the proposed
Traditional General Permit Approach in the requirement for NPDES
authorities to revisit permit requirements during the permit issuance
process, and to make any necessary changes in order to ensure that the
subsequent permit continues to meet the NPDES requirements ``to reduce
the discharge of pollutants from the MS4 to the maximum extent
practicable (MEP), protect water quality, and to satisfy the water
quality requirements of the Clean Water Act.'' Thus, in advance of
issuing any successive small MS4 general permit, the permitting
authority would need to review, among other things, information on the
relative progress made by permittees to meet applicable milestones,
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. Sources of this
information include, but are not limited to:
     Past annual reports;
     Current SWMP documents;
     NPDES MS4 audit reports, construction/industrial/
commercial site inspection reports;
     Monitoring and other information on quality of receiving
waters;
     Existing MS4 permit requirements; and
     Approved TMDLs that include wasteload allocations
applicable to small MS4s.
1. Current Examples of Clear, Specific, and Measurable Permit
Requirements
    As discussed in the previous section, a key component of the
proposed Traditional General Permit Approach is that permits be written
with sufficient clarity and specificity to enable permittees, the
public, and regulatory authorities alike to understand what is required
to measure progress. EPA acknowledges that meeting the requirement to
include more detailed terms and conditions in small MS4 permits and to
ensure, among other things, that the permit terms satisfy the
regulatory requirement to reduce pollutant discharges from the MS4 to
the MEP (and meet the requirement to protect water quality and meet the
appropriate water quality requirements of the CWA) will not be easy for
some states. States that have not already written permits in this way
would need to evaluate the quality of the existing SWMPs, the track
record of each MS4 in implementing their respective SWMPs, the types of
BMPs that have proven effective, and information that may suggest what
is necessary to address existing water quality conditions, including
whether additional requirements are needed to address an applicable
TMDL. Among other factors that the state would need to consider when
issuing a new, or the next, general permit are how long the MS4 has
been permitted, the degree of progress made by the small MS4 permittees
as a whole and for individual MS4s as well, the reasons for any lack of
progress, and the capability of these MS4s to achieve more focused
requirements. EPA finds promise in some of the strategies that EPA and
state permitting authorities are already implementing, which will serve
as useful models to those permitting authorities needing advice on how
to write their permits under the proposed Traditional General Permit
Approach. For example, permitting authorities may find that
subcategorizing MS4s by experience, size, or other factors, and
creating different requirements for each subcategory, may be desirable.
Permitting authorities may also consider whether watershed-wide general
permits may be an option, especially where the receiving waters are
impaired.
    In addition to the model permit language in the MS4 Permit
Improvement Guide, EPA recently compiled a number of examples where
small MS4 general permits have already included requirements that are
clear, specific, and measurable in a document entitled MS4 General
Permits and the Six Minimum Control Measures: A

National Compendium of Clear, Specific, and Measurable Requirements,
which can be accessed in the docket for this proposed rule. Additional
examples of clear, specific, and measurable permit requirements in MS4
general permits, focusing on post-construction requirements and water
quality-based effluent limits, are included in EPA's Municipal Separate
Storm Sewer System Permits: Post-Construction Performance Standards &
Water Quality-Based Requirements: A Compendium of Permitting
Approaches.\7\ The fact that many permitting authorities have already
included provisions that would qualify as clear, specific, and
measurable under the proposed rule indicates that making this a
requirement for all permits is reasonable and achievable. EPA requests
comment on what additional examples should be highlighted as being
clear, specific, and measurable in current small MS4 general permits.
---------------------------------------------------------------------------

    \7\ EPA. 2014. Municipal Separate Storm Sewer System Permits:
Post-Construction Performance Standards & Water Quality-Based
Requirements: A Compendium of Permitting Approaches. Office of
Water. Washington, DC. EPA 833.R.14.003. http://water.epa.gov/polwaste/npdes/stormwater/upload/sw_ms4_compendium.pdf.
---------------------------------------------------------------------------

2. Types of Permit Language Lacking Sufficient Detail To Qualify as
Clear, Specific, and Measurable
    Just as there are a number of examples to be highlighted where
states are already writing their permits consistent with the proposed
Traditional General Permit Approach, EPA also found permits that lack
adequate detail and would not qualify as clear, specific, and
measurable under the proposed rule modifications. Permit requirements
that do not appear to have the type of detail that would be needed
under the proposed rule approach may have some of the following
characteristics:
     Permit provisions that simply copy the language of the
Phase II regulations verbatim without providing further detail on the
level of effort required or that do not include the minimum actions
that must be carried out during the permit term. For instance, where a
permit includes the language in 40 CFR 122.34(b)(4)(ii)(B) (i.e.,
requiring ``. . . construction site operators to implement appropriate
erosion and sediment control best management practices'') and does not
provide further details on the minimum set of accepted practices, the
requirement would not provide clear, specific, and measurable
requirements within the intended meaning of the proposed Traditional
General Permit Approach. The same would also be true if the permit just
copies the language from the other minimum control measure provisions
in 40 CFR 122.34(b) without further detailing the particular actions
and schedules that must be achieved during the permit term.
     Permit requirements that include ``caveat'' language, such
as ``if feasible,'' ``if practicable,'' ``to the maximum extent
practicable,'' and ``as necessary'' or ``as appropriate'' unless
defined. Without defining parameters for such terms (for example,
``infeasible'' means ``not technologically possible or not economically
practicable and achievable in light of best industry practices''), this
type of language creates uncertainty as to what specific actions the
permittee is expected to take, and is therefore difficult to comply
with and assess compliance.
     Permit provisions that preface the requirement with non-
mandatory words, such as ``should'' or ``the permittee is encouraged to
. . . .'' This type of permit language makes it difficult to assess
compliance since it is ultimately left to the judgment of the permittee
as to whether it will comply. EPA notes that the Phase II regulations
include ``guidance'' in places (e.g., 40 CFR 122.34(b)(1)(ii),
(b)(2)(ii), and (b)(3)(iv)), which suggest practices for adoption by
MS4s and within permits, but does not mandate that they be adopted.
This guidance language is intended for permitting authorities to
consider in establishing their permit requirements. While permitting
authorities may find it helpful to their permittees to include guidance
language within their permits in order to provide suggestions to their
permittees, such language would not qualify as a permit requirement
under the proposed Traditional General Permit Approach.
     Permit requirements that lack a measurable component. For
instance, several permits include language implementing the
construction minimum control measure that requires inspections ``at a
frequency determined by the permittee'' based on a number of factors.
This type of provision includes no minimum frequency that can be used
to measure adequacy and, therefore, would not constitute a measurable
requirement for the purposes of the proposed rule.
     Permit requires the development of a plan to implement one
of the minimum control measures, but does not include details on the
minimum contents or requirements for the plan, or the required
outcomes, deadlines, and corresponding milestones. For example, some
permits require the MS4 to develop a plan to implement the public
education minimum control measure, which informs the public about steps
they can take to reduce stormwater pollution. The requirement leaves
all of the decisions on what specific actions will be taken during the
permit term to comply with this provision to the MS4 permittee, thus
enabling almost any type of activity, no matter how minor or
insubstantial, to be considered compliance with the permit. In EPA's
view, this type of permit provision would not qualify as a clear,
specific, and measurable requirement under the proposed Traditional
General Permit Approach.
3. Summary/Description of Proposed Rule Changes
    The following is a section-by-section summary of the proposed
regulatory changes.
Proposed Changes to 40 CFR 122.33
    The following changes to 40 CFR 122.33 are proposed to complement
the changes made to implement the Traditional General Permit Approach
option:
     Throughout the section references to ``you'' or ``your''
would be replaced with references to ``the operator.'' This change is
proposed for consistency with revisions to 40 CFR 122.34 and 40 CFR
122.35.
     The requirements for obtaining coverage under a general
permit would now be the same as those for any other general permit in
40 CFR 122.28(b)(2). The NOI would no longer be required to include
information on the MS4's BMPs and measurable goals.
     The requirements for applying for an individual permit
would be consolidated in 40 CFR 122.33(b)(2), whereas these
requirements now appear in both 40 CFR 122.31 and in 40 CFR 122.34(d).
     The deadline of March 10, 2003 for MS4s wishing to
implement a program that differed from 40 CFR 122.34 to submit an
individual permit application would be removed since the date has
passed and is no longer relevant. Similarly, the deadline of March 10,
2003 for MS4s designated for regulation by 40 CFR 122.32(a)(1) would be
deleted since the date has passed and is no longer relevant.
Proposed Changes to 40 CFR 122.34
    Most of the proposed changes to 40 CFR 122.34 are made to clarify
that it is the permitting authority's responsibility, and not that of
the small MS4 permittee, to establish permit terms that meet the small
MS4 regulatory standard (i.e., ``. . . 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.''), and to delineate the
requirements for implementing the six minimum control measures, other
more stringent effluent limitations as necessary, as well as other
requirements. The proposed modifications do not alter the existing,
substantive requirements of the six minimum control measures in 40 CFR
122.34(b), but instead emphasize the way in which the permitting
authority makes the determination as to what requirements are included
in small MS4 permits, including general permits. For instance, a
typical change in the proposed Traditional General Permit Approach is
made in 40 CFR 122.34(b)(3)(ii), which transfers the obligation to
address certain categories of non-stormwater discharges from the small
MS4 operator (referred to as ``you'') to the permitting authority by
requiring that ``the permit must require the permittee to address the
following categories of non-storm water discharges.'' Otherwise, unless
specified, there is no change to the language of the existing rule.
Proposed Changes to 40 CFR 122.34(a)
    The following changes to 40 CFR 122.34(a) are proposed:
     The proposed regulatory text clarifies that the permitting
authority is required to include in any small MS4 permit conditions
that ensure pollutant discharges from the MS4 are reduced to the MEP,
are protective of water quality, and satisfy the water quality
requirements of the CWA. In order to ensure that these permit
conditions are of adequate detail and their meaning is clear to all
parties, the proposed rule emphasizes that permit requirements must be
written in a ``clear, specific, and measurable'' form. This language is
consistent with the recommendation in EPA's MS4 Permit Improvement
Guide (2010), which advised permitting authorities to write MS4 permits
with permit provisions that are ``clear, specific, measurable, and
enforceable.'' In addition, the proposed regulatory text for the
Traditional General Permit Approach emphasizes that the permit
requirements must be adequate to collectively meet the regulatory
standard, that is: ``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 (CWA).'' EPA notes that no changes are proposed to the
wording of this regulatory standard.
     The proposed regulatory text reiterates that effluent
limitations may be in the form of BMPs, and provides examples of how
these BMP requirements may appear in the permit, such as in the form of
specific tasks, BMP design requirements, performance requirements or
benchmarks, schedules for implementation and maintenance, and the
frequency of actions. This list of examples is not intended to be
exclusive, and EPA anticipates that permitting authorities will, over
time, develop other ways to establish requirements that are consistent
with this language. It is EPA's view that this proposed language serves
the same underlying purpose as the provision it modifies in the current
regulation (i.e., ``. . . narrative effluent limitations requiring
implementation of best management practices (BMPs) are generally the
most appropriate form of effluent limitations when designed satisfy
technology requirements . . . and to protect water quality.'')
     The following provision from the existing regulations is
proposed to be removed: ``Implementation of best management practices
consistent with the provisions of the storm water management program
required pursuant to this section and the provisions of the permit
required pursuant to Sec.  122.33 constitutes compliance with the
standard of reducing pollutants to the `maximum extent practicable.' ''
The court in EDC found this sentence to be particularly problematic in
light of the lack of permitting authority review of NOIs. Based in part
on this language, the court observed that ``the operator of a small MS4
needs to do nothing more than decide for itself what reduction in
discharges would be the maximum practical reduction.'' EDC at 855.
Furthermore, the court found that ``under the Phase II Rule, nothing
prevents the operator of a small MS4 from misunderstanding or
misrepresenting its own stormwater situation and proposing a set of
minimum measures for itself that would reduce discharges by far less
than the maximum extent practicable.'' Id. EPA addresses these concerns
by removing this language, and instead clarifying, as it does through
the other proposed changes to 40 CFR 122.34(a), that it is the
permitting authority who is responsible for establishing requirements
that constitute compliance with requirement to reduce the discharge of
pollutants from the MS4 to the MEP, to protect water quality, and to
satisfy the water quality requirements of the CWA.
     The language in the existing regulations providing
permittees with up to five years from the date of permit issuance to
implement their SWMPs is modified to apply to new permittees,
recognizing that this 5-year period has passed for existing permittees.
Another clarification is included to explain that when a permit is
expiring and a new permit is being developed, the permitting authority
must ensure that the new permit meets the requirements of 40 CFR
122.34(a) based on current water quality conditions, the record of BMP
effectiveness, and other current relevant information. This revision
would 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 SWMP when they reapply for permit
coverage or submit an NOI under the next small MS4 general permit.
Proposed Changes to 40 CFR 122.34(b)
    The following changes are proposed to be made to 40 CFR 122.34(b):
     In the proposed regulatory text, the small MS4 operator is
still required to develop a SWMP; however, the stated purpose of the
SWMP is clarified to emphasize the fact that it is a tool for
describing how the permittee will comply with the permit requirements
implementing the six minimum control measures, and does not contain
effluent limitations or permit conditions. The effluent limitations and
other enforceable conditions would be stated in the permit itself. The
proposed regulatory text for the Traditional General Permit Approach
would clarify that for general permits, documentation of the measurable
goals in the SWMP should include schedules that are consistent with any
deadlines already established in the general permit. The purpose of
this proposed requirement is to preserve the SWMP as a tool for
permittees to describe [in more detail] how the MS4 will implement the
BMPs required by the permit and to document updates to the SWMP as
needed during the permit term if changes are called for to comply with
the permit. This language is intended to support the underlying
clarification in the proposal that it is in the permit where the
enforceable requirements are established, while the role of the SWMP
document or other document(s) is to describe in writing how the
permittee will comply with these requirements. Under this formulation,
a permittee's failure to develop a SWMP document would constitute a
violation of the permit, but a permittee's failure to install a
specific control measure that is

described in the SWMP document would not be a violation of the permit,
unless the permit required that this specific control measure be
installed as a required BMP. EPA notes that the proposed regulatory
text also includes language to clarify that whether or not the SWMP can
be found in one document or a series of documents, there should be a
written description in some form that explains how the permittee will
comply with the permit's minimum control measure requirements. In other
words, the ``SWMP document'' refers to the documentation, whether
located in one place or comprised of multiple documents (e.g.,
ordinances, manuals, documented procedures, and other documentation),
that is the written form of the permittee's SWMP. Reference to a
``document'' in the proposed rule is not intended to create a new
documentation requirement.
     Changes in various provisions in 40 CFR 122.34(b)(1)
through (6) are proposed to emphasize the permitting authority's role
in including requirements that address the minimum control measures as
compared to the current regulations, which give this responsibility to
the MS4. In most instances, the proposed modifications are merely
changing a few words to switch from the first person (i.e., ``you'') to
the third person (i.e., ``the MS4''). The proposed modifications do not
alter the existing, substantive requirements of the six minimum control
measures in 40 CFR 122.34(b).
Proposed Changes to 40 CFR 122.34(d)
    The following changes are proposed to be made to 40 CFR 122.34(d).
     The proposed regulatory text for the Traditional General
Permit Approach would remove existing paragraph (d) from 40 CFR 122.34.
The information required to be included in permit applications for
individual permits in paragraph (d)(1) would be moved to 40 CFR
122.33(b)(2)(i). This information would no longer be required to be
submitted with NOIs. Because EPA and many states have issued menus of
BMPs, paragraph (d)(2) is no longer relevant, and under the Traditional
General Permit Approach, paragraph (d)(3) would also no longer be
needed.
     For general permits, the information required to be
included in the NOI would track with the requirements for general
permits in 40 CFR 122.28(b)(2)(ii). See discussion on 40 CFR 122.33.
There would be no change to the requirement that an MS4 seeking an
individual permit must submit an application with its proposed BMPs to
implement the six minimum control measures and measurable goals for BMP
implementation.
Proposed Changes to 40 CFR 122.34(e) and (f)
    The following changes are proposed to be made to 40 CFR 122.34(e)
and (f):
     The proposal would consolidate the current requirements in
40 CFR 122.34(e)(1) and (f) under one section, 40 CFR 122.34(c),
entitled ``Other applicable requirements.''
     EPA proposes to remove the guidance in the current
regulations at Sec.  122.34(e)(2). The guidance 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, more stringent requirements. EPA has found that a
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 more stringent requirements that
are in addition to the six minimum measures irrespective of the status
of EPA's 40 CFR 122.37 evaluation. See EPA's Municipal Separate Storm
Sewer System Permits--Post-Construction Performance Standards & Water
Quality-Based Requirements: A Compendium of Permitting Approaches
(2014). Based on the advancements made by specific permitting programs,
and information that points to stormwater discharges continuing to
cause waterbody impairments around the country, 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.
See EPA's MS4 Permit Improvement Guide (2010). 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 40 CFR
122.34(e)(2).
Proposed Renumbering of 40 CFR 122.34(c) and (g)
    The following changes are proposed to be made to 40 CFR 122.34(c)
and (g):
     The existing ``qualifying local program'' provision
currently in 40 CFR 122.34(c) would be renumbered as 40 CFR 122.34(e).
     The ``evaluation and assessment'' provision currently in
40 CFR 122.34(g) would be renumbered as 40 CFR 122.34(d). Conforming
changes would be made to 40 CFR 122.35 to update the cross-references
in that section.

B. Option 2--Procedural Approach

    Another option, called the ``Procedural Approach,'' for which EPA
requests comment would address the remand by incorporating additional
permitting authority and public review steps into the existing
regulatory framework for providing coverage to small MS4s under general
permits. EPA is not proposing specific regulatory text for this option,
but has included a detailed description of how the Procedural Approach
would work. In addition to comments on the merits of the option, EPA
solicits comments recommending specific regulatory text for this
option.
    Under the existing regulation, 40 CFR 122.34(d)(1), MS4s seeking
authorization to discharge under a general permit must submit an NOI
that identifies the BMPs that the MS4 will implement for each of the
six minimum control measures. The NOI must also state the measurable
goals for each of the BMPs, including the timing and frequency of their
implementation. Under the Procedural Approach, once an MS4 operator
submits its NOI requesting coverage under the general permit, an
additional step would take place in which the permitting authority
would review, and the public would be given an opportunity to comment
and request a hearing on, the merits of the MS4's proposed BMPs and
measurable goals for complying with the requirement to reduce
discharges to the MEP, to protect water quality, and to satisfy the
appropriate water quality requirements of the CWA.
    Under the ``Procedural Approach'' option, the existing regulatory
requirement for the small MS4 to submit an NOI with the BMPS and
measurable goals as provided in 40 CFR 122.34(d) and the requirement in
40 CFR 122.34(a) to develop, implement, and enforce a SWMP to meet the
six minimum measures and to reduce pollutant discharges to the MEP, to
protect water quality, and to satisfy the appropriate water quality
requirements of the CWA would be retained. In this option, the NOI
would continue to be used in the same way as the court considered the
NOI in the EDC case. The NOI would continue to serve as the document
that describes the BMPs and measurable goals that would be considered
to be the enforceable requirements applicable to the permittee, in
addition to the terms and conditions of the general permit. While a
SWMP would still need to be developed, it would not establish
enforceable requirements beyond those

identified in the NOI that would have undergone public notice and
comment and permitting authority review.
    The process would occur in the following sequence: Following the
receipt of an NOI for coverage under the general permit, the permitting
authority would review the NOI to assess whether the proposed BMPs and
measurable goals meet the requirements to reduce pollutants to the MEP,
protect water quality, and satisfy the water quality requirements of
the CWA. If not, the permitting authority would request supplemental
information or revisions as necessary to ensure that the submission
satisfies the regulatory requirements. Once satisfied with the
submission, the Procedural Approach would require the permitting
authority to provide public notice of the NOI and an opportunity to
request a hearing on the NOI, in accordance with 40 CFR 124.10 through
124.13. After consideration of comments received and a hearing, if
held, the permitting authority would provide notice of its decision to
authorize coverage under the general permit and with the specific
requirements each MS4 must meet, in accordance with 40 CFR 124.15, or
as provided by state law for providing notice of a final permit
decision in authorized states. Upon completion of this process, the
MS4-specific requirements in the NOI, together with the terms and
conditions set forth in the general permit, would be incorporated as
requirements of the permit for the particular MS4.
    Where the state is the permitting authority, it would also provide
EPA an opportunity to review the individual NOIs and submit comments or
objections to the state regarding the adequacy of the NOI before it is
made available for public review, consistent with requirements under 40
CFR part 124 for NPDES permit applications and under 40 CFR 123.44 for
draft permits. This two-step Procedural Approach is similar to the
procedure used to establish ``terms of the nutrient management plan''
permit requirements proposed by concentrated animal feeding operations
(CAFOs) seeking coverage under a general permit under 40 CFR 122.23(h).
While Option 2 still relies on the use of a general permit, it follows
several of the same process steps as those used for an individual
permit.
    Some states, including Minnesota and Texas, have used a similar
procedural approach as a way to address the problems identified in the
EDC decision. In Minnesota, for example, the state has developed a
detailed form that must be completed by any small MS4 seeking coverage
under the Minnesota general permit, which when completed will become in
effect its SWMP document (referred to as a ``Stormwater Pollution
Prevention Plan Document'' of ``SWPPP Document''). The state then
reviews the MS4's submission and determines whether revisions are
needed to meet the requirements of the permit. After any necessary
revisions, the state provides public notice of the NOI and SWPPP
Document, and makes them available for public review and comment, and
for any requests to hold a public hearing. After considering public
comments, the state then makes a final determination on whether to
authorize coverage under the general permit, and, if authorized, the
contents of the SWPPP Document (as revised when necessary following
public comment) become enforceable under the general permit. The
Minnesota approach gives MS4s flexibility by providing a range of
options from which an MS4 can choose for its particular circumstances.
It also provides the public with the opportunity to review the MS4's
proposed choices and the permitting authority's determination of
adequacy, and to provide comment and request a hearing. The MS4's
proposed program for implementing the six minimum measures goes into
effect only after the state has made an affirmative determination that
the MS4's program has met the burden of showing that pollutant
discharges will be reduced to the MEP, will be protective of water
quality, and will satisfy the appropriate water quality goals of the
CWA, thus providing the necessary permitting authority review.
    Texas also reviews individual MS4 program documents to determine
whether they meet the minimum permit and regulatory requirements. In
contrast to the more detailed NOI checklist used by Minnesota, Texas
uses a relatively short NOI form but requires the MS4 to submit its
entire SWMP document for review after the general permit is issued. It
does so with the intent to have the SWMP document identify the MS4-
specific enforceable requirements, rather than to have this information
contained in the NOI. Texas requires the MS4 to provide the public
notice of the state's preliminary determination to authorize coverage
under the general permit in accordance with the SWMP document and an
opportunity to comment on the SWMP document and request a hearing.
Comments on the adequacy of the SWMP document and requests for public
hearings are submitted directly to the state and the state also
determines whether there is sufficient interest to hold a public
hearing on the SWMP document.
    Under the Procedural Approach, EPA would preserve one of the core
attributes of the existing regulations, that is the flexibility
afforded the MS4 to identify the BMPs that it determines are needed to
meet the minimum regulatory requirements to reduce pollutant discharges
to the MEP, to protect water quality, and to satisfy the water quality
requirements of the CWA in its SWMP. This approach may appeal to states
that accept the notion that the MS4 should have the initial opportunity
to propose the BMPs that it believes will meet the regulatory
requirements, and that each program may differ substantially from MS4
to MS4.
    However, the need to undergo a second round of public notice and
comment at the state level, in addition to the one provided for the
general permit, for approximately 6800 small MS4s, may be seen as a
drawback due to the additional workload placed on permitting
authorities that do not already follow this approach. The value added
by the second comment period is also a consideration. Staff in
Minnesota's program reported that while they received over 1500
comments in response to proposing the state-level general permits, only
a handful of comments were submitted on the individual MS4 NOI and
SWPPP Document submissions during the second public comment period.
Staff in Texas' program reported that the state received no comments
when it provided public notice on the individual MS4 SWMPs.
    Another factor to consider is that under the Procedural Approach
some changes to the BMPs and measurable goals identified in the NOI
during the term of the permit could constitute a modification to the
permit, and would be subject to permit modification procedures
applicable to all NPDES permits. See 40 CFR 122.62 and 122.63. For
example, if the MS4 decides to discontinue implementing a particular
BMP that it included in its NOI (and which became an enforceable permit
requirement) and to substitute a different BMP, a permit modification
would be needed. It is not clear whether states are currently using
permit modification procedures to process changes to a MS4's SWMP. One
possibility for addressing the need for change would be for the
permitting authority to establish in the general permit itself a
process for making changes to the SWMP without triggering the permit
modification procedures, as long as it identifies what changes could be
made and under what circumstances.

EPA seeks comment on whether to provide in the regulations the option
for modifying the general permit under the minor modification
procedures in 40 CFR 122.63 for ``nonsubstantial revisions'' to BMPs,
as provided for changes to terms of a CAFO's nutrient management plan
that are ``not substantial'' under 40 CFR 122.42(e)(6). EPA also seeks
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 40 CFR 122.42(e)(6).
    Like several other states, Texas requires the MS4s to provide local
public notice and the opportunity to provide comments on individual MS4
NOIs (or the SWMP, as in Texas). What stands out in the Texas approach
is that, even though the MS4 must provide the necessary notice, public
comments are submitted to the state agency, and the state clearly
maintains the decision making over the adequacy of the MS4's SWMP to
meet permit and regulatory requirements. The state does so by reviewing
the SWMP document before it is public noticed and evaluating for itself
any public comments on the SWMP document and whether there is
sufficient interest to require a public hearing. EPA seeks comment on
whether a rule establishing a procedural approach should enable
permitting authorities that rely on the MS4 to public notice its NOI to
be able to use this approach to satisfy the public notice requirement
for the individual NOIs. If allowed, should it be limited to when the
State clearly makes the ultimate decisions about what requirements are
sufficient to meet the MEP, to protect water quality, and to satisfy
the appropriate water quality requirements of CWA?
    The Texas approach appears to differ from the current procedures
that apply to NPDES permits outlined in 40 CFR part 124 in the level of
detail about the various procedural requirements such as who must be
notified of the proposed action. In this respect, the Texas program
resembles EPA's approach to establishing or changing terms of nutrient
management plans under CAFO general permits by modifying selected
elements of the public participation requirements that apply to
individual permits, for example, by shortening the length of public
comment period or the period for requesting a public hearing (see 40
CFR 122.23(h)(1) and 122.42(e)(6)), or by allowing web-based public
notice alternatives in addition to those identified in 40 CFR 124.10
(c). If EPA chooses to adopt this option, it would largely rely on the
existing requirements in 40 CFR part 124 to govern what procedures are
necessary to approve the BMPs in the NOI as enforceable provisions of
the general permit. However, as discussed, EPA is considering some
variations in these 40 CFR part 124 procedural requirements similar to
those applicable to incorporating terms of the nutrient management plan
into CAFO permits.
    Based on the experiences of states that use a similar procedural
approach, EPA estimates that conducting individualized reviews of NOIs
and requiring an additional notice and comment period for the initial
authorization and subsequent permit modifications in states that do not
already provide it would require a significant dedication of staff
time, in an amount estimated at 24 hours per MS4. Based on Minnesota's
experience, EPA expects the workload to be greatest in the first permit
cycle but to decrease by some amount in subsequent cycles as the
permitting authority takes advantage of efficiencies gained from having
gone through the process before and as the quality of the MS4
submissions improve over time. For states that already use a two-step
process, some modest amount of workload increase may be necessary to
ensure that all of the process steps are carried out, including
additional time needed to process and approve SWMP modifications that
change the BMPs in the NOI that have been approved and have become
enforceable terms of the permit.
    The following regulatory modifications are envisioned if the
Procedural Approach is selected for the final rule.
     Include additional language indicating that to the extent
that the permitting authority chooses to rely on the MS4 operator to
describe in its NOI the BMPs, measurable goals, schedules, and other
activities in its SWMP that it plans to implement to reduce pollutant
discharges to the MEP, to protect water quality, and to satisfy the
appropriate water quality requirements of the CWA, the permitting
authority will need to incorporate these as enforceable elements of the
permit in accordance with the procedures for public notice, the
opportunity to request a hearing, and permitting authority final
determination in 40 CFR part 124.
     With respect to determining the appropriate 40 CFR part
124 procedures to follow, one model that EPA could utilize in crafting
applicable rule language is the regulatory procedures in 40 CFR
122.23(h) for CAFO general permits. While the CAFO and MS4 programs
differ fundamentally from one another in many ways, there are some
aspects of the CAFO general permit procedures that could be modified in
a manner that would make them suitable to small MS4 general permits.
Thus, based on some of the key elements of the CAFO general permit
procedures in 40 CFR 122.23(h), EPA is considering including the
following provisions in revised 40 CFR 122.33(b)(1) as subparagraphs
(i)-(iii):

--At a minimum, the operator must include in the NOI the BMPs that it
proposes to implement to comply with the permit, the measurable goals
for each BMP, the person or persons responsible for implementing the
SWMP, and any additional information required in the NOI by the general
permit.
--The Director must review the NOI to ensure that it includes adequate
information to determine if the proposed BMPs, timelines, and any other
actions are adequate to reduce the discharge of pollutants from the MS4
to the maximum extent practicable, to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act. When the Director finds that additional information is necessary
to complete the NOI or clarify, modify, or supplement previously
submitted material, the Director may request such additional
information from the MS4 operator.
--If the Director makes a preliminary determination that the NOI
contains the required information and that the proposed BMPs,
schedules, and any other actions necessary to reduce the discharge of
pollutants from the MS4 to the maximum extent practicable, to protect
water quality, and to satisfy the appropriate water quality
requirements of the Clean Water Act, the permitting authority must
notify the public of its proposal to authorize the MS4 to discharge
under the general permit and, consistent with 40 CFR 124.10, make
available for public review and comment and opportunity for public
hearing the NOI, and the specific BMPs, milestones, and schedules from
the NOI that the Director proposes to be incorporated into the permit
as enforceable requirements. The process for submitting public comments
and hearing requests, and the hearing process if a hearing is granted,
must follow the procedures applicable to draft permits in 40 CFR 124.11

through 124.13. The permitting authority must respond to significant
comments received during the comment period, as provided in 40 CFR
124.17, and, if necessary revise the proposed BMPs and/or timelines to
be included as terms of the permit.
--When the Director authorizes coverage for the MS4 to discharge under
the general permit, the specific elements identified in the NOI are
incorporated as terms and conditions of the general permit for that
MS4. The permitting authority must, consistent with 40 CFR 124.15,
notify the MS4 operator and inform the public that coverage has been
authorized and of the elements from the NOI that are incorporated as
terms and conditions of the general permit applicable to the MS4.

     To accompany these regulatory changes, EPA is also
considering specifying what specific information the MS4 will need to
provide as part of the NOI in order to obtain coverage under a general
permit that will use a procedural approach, such as the approach
described previously. The MS4 would need to provide the same
information as is required for an application for an individual permit
under proposed 40 CFR 122.33(b)(2)(ii). This includes general
background information as specified in Sec.  122.21(f) as well as the
information currently required by 40 CFR 122.34(d), and any other
information requested by the permitting authority.
     If the final rule includes the Procedural Approach or
allows for a hybrid approach under Option 3 (the ``State Choice
Approach''), authorized states would need to revise their approved
programs to include the option(s) chosen by the permitting authority
and to establish or reference the public notice and comment, hearing
request, and other procedures necessary to implement the chosen
option(s).
    For both the Procedural Approach and State Choice Approach (see
Section VI.C), the Agency chose to describe the regulatory changes that
would accompany these options if promulgated as opposed to providing
line-by-line rule text changes as it has for the Traditional General
Permit Approach. In EPA's view, presenting the rule language in this
way will aid in the public's review of the three different options as
compared to presenting three different sets of line-by-line changes.
    EPA requests comment on whether the Agency should adopt as its
final rule option the procedural approach for permitting small MS4s.
EPA has concerns with adopting this approach as the sole rule option
since it would require all but a handful of permitting authorities to
change their permitting procedures to conform to this new approach. Due
to these concerns, EPA also separately requests comment (see next
section) on whether the final rule should give permitting authorities a
choice of which approach, either the Traditional General Permit
Approach or the Procedural Approach, to adopt for their permitting
program, or whether there is support for allowing permitting
authorities to use a combination of these two approaches.
    Among the concerns EPA has with choosing Option 2 for the final
rule is the increase in workload for permitting authorities that would
be associated with reviewing and approving, and providing for notice
and comment, and providing public hearing opportunities, on each
individual NOI. For many permitting authorities, the advantage of
providing flexibility to MS4s to propose what they believe will meet
the applicable regulatory standards will be outweighed by the resource-
intensive procedures that this approach requires. In EPA's discussions
with state permitting authorities, the Agency heard a number of
concerns about their ability to implement new procedures such as these
from a staff and resource perspective. Permitting authorities are also
concerned about making individual decisions on what set of MS4 actions
are sufficient to meet the regulatory requirements without the benefit
of established standards to assist them in making these determinations.
Concerns were also raised by many MS4 permittees, who emphasized the
effects of these procedures on the timeliness of their discharge
authorization, and the fear that states will turn to MS4s to conduct
more notice and comment procedures on their behalf. EPA notes that
there are also those states that are supportive of making the
procedural approach a part of the final rule in some way or form.
    Beyond the workload concerns raised about this option, EPA observes
that the need for flexibility among MS4s to develop and implement
individually tailored SWMPs is different than the type of flexibility
required for CAFO operators in developing and implementing nutrient
management plans. AFO permit operators must consider where several key
and interdependent variables must be considered to account for site-
specific factors such as type of crop grown, soil type, terrain, choice
of method for calculating application rates, in particular with respect
to land application requirements. Each MS4 faces unique circumstances,
but for the most part, the BMPs used to meet minimum control measures
are not interdependent in the same way as choices needed to develop
land application rates under CAFO regulations. EPA and states have
developed menus of different BMPs for the various minimum control
measures. As discussed previously, some states have developed detailed
manuals for the selection, design, installation, and maintenance of
allowable BMPs, which further standardizes the practices to be used for
pollutant control at MS4s. Also, the need for small MS4 flexibility may
have been greater when the small MS4 program was first established.
However, this flexibility may be less critical now that most small MS4s
have established programs, and they and the corresponding permitting
authorities have gained experience in implementing various BMPs and
evaluating the results. Permitting authorities already have the
flexibility to issue different general permits or include different
general permit terms and conditions for different categories of MS4,
such as when there is a new group of MS4s that have not been previously
regulated (for example, because a new Census is published creating
additional urbanized areas) and a group of existing MS4s that may be on
their third or fourth permit. By including specific requirements that
only apply to some of the MS4s, they undergo permitting authority
review and public comment as part of the process and can be part of the
general permit itself. (This would be analogous to EPA's Multi Sector
General Permit for Stormwater from Industrial Activity, in which
different requirements apply to different sectors in the Appendices to
the permit).\8\ For truly unique situations or in instances where the
MS4 wishes to implement a different program, individual permits are
always an alternative. These factors point to the benefit of using the
Traditional General Permit Approach as the preferred way to modify the
general permitting regulations for small MS4s. Though there would
certainly be increases in workload associated with the Traditional
General Permit Approach, EPA's permits and a growing number of state
general permits are being written in this manner and therefore would
not require significant alteration. Additionally, as the list of
examples of clear, specific, and measurable provisions in general
permits grows, presumably other states should be able to take advantage
of

these ideas for their own permits, and thereby save on permit
development time. Requiring the procedural approach on a national level
would impose pressures on state programs that arguably can be handled
in the general permit itself, and therefore avoided.
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    \8\ http://water.epa.gov/polwaste/npdes/stormwater/upload/msgp2015_finalpermit.pdf.
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C. Option 3--State Choice Approach

    EPA requests comments on a third option, which would allow
permitting authorities to choose either the Traditional General Permit
Approach or the Procedural Approach, or some combination of the two as
best suits their needs and circumstances. For example, a state could
choose to use Option 1 for small MS4s that have fully established
programs and uniform core requirements, and Option 2 for MS4s that it
finds would benefit from the additional flexibility to address unique
circumstances, such as some non-traditional MS4s. Alternatively, a
state could apply a hybrid of the two approaches within one permit by
defining some elements within the general permit, which are deemed to
reduce the discharge of pollutants to the MEP, to protect water
quality, and to satisfy the water quality requirements of the CWA, and
enabling other elements to be established through a separate process
that allows for more MS4-specific actions, using the Procedural
Approach. An example of such a hybrid approach might be where a state
incorporates into its general permit a requirement to implement certain
minimum construction BMP requirements, such as implementation of
provisions set forth in a separate statewide manual, which constitute
compliance with the regulatory requirements, but leaves it to the MS4
to propose the BMPs that it will implement to meet the public education
and outreach requirements of the permit. The former permit requirements
would implement the Traditional General Permit Approach and would
require no further permitting authority review and public participation
procedures during the process of authorizing individual MS4 discharges;
however, for the management practices that the MS4 proposes for its
public education and outreach, the permitting authority would need to
follow the Procedural Approach for incorporating these standards into
the permit as requirements of the permit. The benefit of the State
Choice Approach is that the fundamental CWA requirements of permitting
authority review and public participation would be met irrespective of
whether this occurs as a result of the permit issuance itself or
whether these procedures take place in a second step that occurs after
permit issuance but before the MS4 is authorized to discharge under the
permit. This approach would provide for more options for permit
development other than traditional individual or general permits. EPA
will continue to encourage greater specificity in establishing clear,
specific, and measurable permit terms and conditions in the general
permit itself, and expects to provide guidance to assist permitting
authorities in accomplishing this objective. Nevertheless, the Agency
recognizes that permitting authorities may prefer some flexibility in
determining the balance between the efficiencies of a general permit
and the desirability of providing maximum flexibility to small MS4s in
how they will meet the MEP standard.
    The particular balance between specificity and flexibility a state
chooses could evolve over time as the program continues to mature. The
benefit of this option may be that it is the least disruptive to how
state programs operate now and would impose the least burden on state
permitting authorities, unless a state determines that for its
situation (e.g., number and variability among small MS4s, available
resources, requirements under state law, etc.) more choices in
structuring permits would be desirable. If EPA adopts this option as
part of the final rule, the following rule changes would be necessary:
     Adopt the rule changes proposed in this document
associated with the Traditional General Permit Approach, as modified
pursuant to public comment; and
     Adopt the rule changes described in the discussion under
Option 2.
    EPA requests comment on whether the final rule should adopt Option
3, as opposed to selecting either Option 1 or Option 2 in the final
rule. EPA is also interested in comments from permitting authorities as
to which approach they are likely to choose (i.e., Option 1 or Option
2, or a hybrid) if Option 3 is finalized.
    EPA also requests comment on whether under Option 3, EPA should
consider establishing which permit requirements must be developed using
the Traditional General Permit Approach (Option 1), and which may be
developed using the Procedural Approach (Option 2). For instance, EPA
is interested in finding out whether there is support for requiring
permitting authorities to use Option 1 to develop permit conditions
implementing the minimum control measures in 40 CFR 122.34(b), while
providing the permitting authority with the choice of whether to use an
Option 2 approach to establish any more stringent effluent limitations,
such as those based on an approved TMDL. Using this approach, the
general permit would define the specific actions, performance
requirements, and implementation schedules considered necessary to
reduce pollutant discharges to the MEP, to protect water quality, and
to satisfy the water quality requirements of the CWA. However, this
approach would provide the permitting authority the additional
flexibility to allow the MS4 to propose in its NOI the specific
components of a TMDL implementation plan in order to comply with permit
requirements based on applicable wasteload allocation(s). To ensure
that the specific actions and timelines of the TMDL plan are properly
incorporated as elements of the permit, the permitting authority would
then be required to review and approve the small MS4's proposed plan
using the process required by the Procedural Approach (Option 2).
Additionally, with respect to this concept of specifying which aspects
of the small MS4 regulations must be incorporated into permits using
the Option 1 approach, while allowing some permit conditions to be
developed using the Option 2 approach, EPA requests comment on which
permit requirements should be required to be established using Option 1
and which should be given the flexibility to be established using
Option 2.

VII. Incremental Costs of Proposed Rule Options

    The economic analysis estimates the incremental costs of modifying
the Phase II MS4 regulations to address the court's remand. EPA assumed
that all other costs accrued as a result of the existing small MS4
program, which were accounted for in the economic analysis accompanying
the 1999 final Phase II MS4 regulations, remain the same and are not
germane to the economic analysis, unless the proposed rule change would
affect the baseline program costs. In this respect, EPA focused only on
new costs that may be imposed as a result of implementing any of the
three options being proposed for comment. It is, therefore, unnecessary
to reevaluate the total program costs of the Phase II rule, since those
costs were part of the original economic analysis conducted for the
1999 Phase II rule (see 64 FR 68722, December 8, 1999). For further
information, refer to the Economic Analysis that is included in the
proposed rule docket.
    The following table summarizes the estimated costs for each of the
proposed rule options under consideration.

------------------------------------------------------------------------
                                            Net present     Annualized
          Proposed rule option                 value           cost
------------------------------------------------------------------------
1--Traditional General Permit Approach..      $9,579,921        $802,477
2--Procedural Approach..................       8,279,962         693,584
3--State Choice Approach................       9,189,933         769,809
------------------------------------------------------------------------

    These estimates are all below the threshold level established by
statute and various executive orders for determining that a rule has a
significant or substantial impact on affected entities. See further
discussion in Section VIII of this document.
    The Economic Analysis assumes that all costs will be borne by NPDES
permitting authorities in the form of increased administrative costs to
write more detailed permits for Option 1, or to review and approve and
process comments on NOIs submitted for general permit coverage for
Option 2. Likewise, Option 3 costs reflect the estimated increase in
NPDES permitting authority workload (for both EPA and state permitting
authorities), which is a function of an assumed amount of NPDES
permitting authorities who will choose to implement Option 1 versus
Option 2. EPA does not attribute new costs to regulated small MS4s
beyond what they are already subject to under the Phase II regulations.
This is because the focus of the proposed rule is on the administrative
manner in which general permits are issued and/or coverage under those
permits is granted. EPA is changing through this rulemaking any of the
underlying requirements in the Phase II regulations to which small MS4s
are subject.
    EPA chose conservative assumptions about impacts on state
workloads, meaning that the estimated economic costs of the policy
change are most likely lower than what is actually presented. For
instance, EPA did not reduce the number of hours necessary for
permitting authorities to draft specific permits pursuant to the Option
1 requirements in the second and third permit term despite the fact
that the Agency expects that most permitting authorities, after
drafting a specific permit to address Option 1 for the first time would
spend less time in subsequent rounds reissuing the same permit.
Similarly, in its modeling of Option 2, EPA did not reduce the average
number of hours to review each NOI in the second and third permit term,
even though EPA expects that most NOIs would address any deficiencies
after the first review, therefore resulting in less review time needed
in subsequent rounds.
    EPA considers the cost assumptions in Option 1 to be conservative
because as more permitting authorities write general permits to
establish requirements consistent with the proposed Option 1, other
permitting authorities could use and build on those examples, reducing
the amount of time it takes to draft the permit requirements. EPA has
issued guidance to permitting authorities on how to write better MS4
permits (EPA 2010 and EPA 2014), and has included additional examples
of permit language from existing permits in the docket for this rule.
See General Permits and the Six Minimum Control Measures: A National
Compendium of Clear, Specific, and Measurable Requirements. EPA also
anticipates providing further guidance once the rule is promulgated to
assist states in implementing the new rule requirements, which should
make permit writing more efficient.

VIII. 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 Proposed Municipal Separate Storm Sewer System (MS4)
General Permit Remand Rule,'' is summarized in Section V.II 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 propose changes to 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. This action
will have an impact on state government agencies that administer the
Phase II MS4 permitting program. The impact to states that are NPDES
permitting authorities may range from $6,792,106 to $11,356,092
annually. Details of this analysis are presented in ``Economic Analysis
for the Proposed Municipal Separate Storm Sewer System (MS4) General
Permit Remand Rule.''

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 only affects the way in which state permitting authorities
administer general permit coverage to small MS4s. Nonetheless, EPA
consulted with small governments concerning the regulatory requirements
that might indirectly affect them, as described in section V.B.

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 proposes 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 $6,792,106 to
$11,356,092 annually, depending upon the rule option that is finalized.
Details of this analysis are presented in ``Economic Analysis for the
Proposed Municipal Separate Storm Sewer System (MS4) General Permit
Remand Rule,'' which is available in the docket for the proposed 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 and regulated MS4s 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 proposed rule.

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 proposed 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. 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 in its SWMP
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 proposed rule. Based on this
outreach and additional, internal analysis, EPA confirmed that this
proposed action would have little tribal impact and would be of little
interest to tribes.

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.

List of Subjects in 40 CFR Part 122

    Environmental protection, Storm water, Water pollution.

    Dated: December 17, 2015.
Gina McCarthy,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40
CFR part 122 as follows:

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. 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.
    (b) The operator of any regulated small MS4 must seek authorization
to discharge under a general or individual NPDES permit, as follows:
    (1) If seeking coverage under a general permit issued by the
Director, the operator must submit a Notice of Intent (NOI) consistent
with Sec.  122.28(b)(2). The operator may file its own NOI, or the
operator and other municipalities or governmental entities may jointly
submit an NOI. If the operator wants to share responsibilities for
meeting the minimum measures with other municipalities or governmental
entities, the 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.
    (2)(i) If seeking authorization to discharge under an individual
permit and wishing to implement a program under Sec.  122.34, the
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 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 measurable goals for each of the BMPs including, as
appropriate, the months and years in which the operator will 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; and
    (E) Any additional information that the NPDES permitting authority
requests.
    (ii) If seeking authorization to discharge under an individual
permit and wishing to implement a program that is different from the
program under Sec.  122.34, the operator will need to comply with the
permit application requirements in Sec.  122.26. The operator will need
to submit both parts of the application requirements in Sec.  122.26
(d)(1) and (2) at least 180 days before the operator proposes to be
covered by an individual permit. The operator does not need to submit
the information required by Sec.  122.26(d)(1)(ii) and (d)(2) regarding
its legal authority, unless the operator intends for the permit writer
to take such information into account when developing other permit
conditions.
    (iii) If allowed by the Director, the operator of the regulated
small MS4 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) 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 participate in its storm water
program, the parties may jointly seek a modification of the other MS4
permit to include the small MS4 as a limited co-permittee. As a limited
co-permittee, the operator of the small MS4 will be responsible for
compliance with the permit's conditions applicable to its jurisdiction.
If the operator of the small MS4 chooses this option it will need to
comply with the permit application requirements of Sec.  122.26, rather
than the requirements of paragraph (b)(2)(i) of this section. The
operator of the small MS4 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 operator of the small MS4
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
an MS4's storm water management program, the regulated small MS4 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 regulated small MS4 should also explain its
role in coordinating storm water pollutant control activities in the