[Federal Register Volume 72, Number 113 (Wednesday, June 13, 2007)]
[Notices]
[Pages 32654-32657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11316]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8325-9]
Final NPDES General Permits for Small Municipal Separate Storm
Sewer Systems (sMS4s) in New Mexico, Indian Country Lands in New Mexico
and Indian Country Lands in Oklahoma; Minor Revisions and Corrections
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final NPDES General Permits and minor revisions and
corrections.
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SUMMARY: EPA Region 6 is announcing issuance of final National
Pollutant Discharge Elimination System (NPDES) general permits for
storm water discharges from small municipal separate storm sewer
systems (sMS4s) located in the State of New Mexico (NMR040000), Indian
Country Lands in New Mexico (NMR04000I), and Indian Country Lands in
Oklahoma (OKR04000I). Hereinafter, the term ``permit'' will be used to
refer collectively to all three general permits. A document containing
the Agency's responses to public comments on the proposed permit is
available. The permit will authorize the discharges from sMS4s in
accordance with the terms and conditions described therein. This notice
also revises the effective and expiration dates of the permit, as well
as the Notice of Intent deadline, and announces minor revisions and
corrections to the final permit and supporting documents.
DATES: Following 30-day notice and comment periods on the draft permit
and a supplemental notice containing revisions to the draft permit,
notice of the final permit was originally published in New Mexico and
Oklahoma newspapers in October 2006, with a stated effective date of
January 1, 2007. The newspaper notices stated that NOIs for coverage
under the final permit were due to EPA by April 1, 2007. Due to
unforeseen delays in noticing the final permit in the Federal Register,
EPA is through today's notice revising both the effective date of the
final permit and the deadline for filing NOIs. The revised effective
date for the general permit is July 1, 2007, and NOIs to be covered
will be due October 1, 2007. The revised expiration date of the permit
is June 30, 2012. In accordance with 40 CFR 23.2, this action is
considered issued for purposes of judicial review as of 1 p.m. eastern
daylight time (e.d.t.) on June 27, 2007. Under section 509(b)(1) of the
Clean Water Act (CWA) and 40 CFR 124.19, judicial review of the
Agency's actions relating to the issuance of an NPDES general permit is
available in the United States Court of Appeals within 120 days after
the decision is final for the purposes of judicial review. Under CWA
section 509(b)(2), the final permit may not be challenged later in
civil or criminal proceedings brought by EPA to enforce these
requirements.
ADDRESSES: The administrative record is available for inspection and
copying at the EPA Region 6 offices at 1445 Ross Ave., Dallas, Texas
between 9 a.m. and 4 p.m., Monday-Friday, excluding legal holidays.
Please contact Ms. Diane
[[Page 32655]]
Smith at (214) 665-2145 to schedule a time to review or copy documents.
A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Additional information concerning the
final permit may be obtained from Ms. Diane Smith, EPA Region 6, 1445
Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2145. The
final general permit, Response to Comments document, draft permit fact
sheet, supplemental proposal on the draft permit, and other supporting
information and guidance are available online via http://www.epa.gov/region6/6wq/npdes/sw/sms4/index.htm.
SUPPLEMENTARY INFORMATION: The following fact sheet provides background
information and explanation for today's notice of the final sMS4
general permit issuance, including a summary Response to Comments
regarding comments on the draft permit and changes made to the final
permit. Additional information on the statutory and regulatory basis
for the permit are found in the fact sheet for the proposed permit, the
supplemental proposal on the draft permit, the Federal Register notices
on the draft permit and supplemental proposal, and the response to
comments documents referenced above. Today's notice also makes certain
revisions and minor corrections/clarifications to the response to
comments document and the permit.
I. Background
In the 1987 amendments to the CWA, Congress established a phased
and tiered approach for addressing pollutants in point source storm
water discharges (CWA Sec. 402(p)). Phase I of the NPDES storm water
program included requirements for large and medium municipal separate
storm systems (MS4s) (55 FR 47990) and Phase II included requirements
for small MS4s (64 FR 68722). Today's final sMS4 general permit covers
storm water discharges from MS4s meeting the definition of a ``small
municipal separate storm sewer system'' at 40 CFR 122.26(b)(16) and any
designated under 40 CFR 122.32(a)(1) or 40 CFR 122.32(a)(2). A MS4
consists of a system of conveyances (including roads with drainage
systems, municipal streets, catch basins, curbs, gutters, ditches, man-
made channels, or storm drains) that collects storm water; is owned or
operated by the United States, a State, city, town, borough, county,
parish, district, association, or other public body (created by or
pursuant to State law) having jurisdiction over disposal of sewage,
industrial wastes, storm water, or other wastes, including special
districts under State law such as a sewer district, flood control
district or drainage district, or similar entity, or an Indian tribe or
an authorized Indian tribal organization, or a designated and approved
management agency under Section 208 of the CWA; and discharges to
waters of the United States. A sMS4 typically serves a population of
less than 100,000. Only those sMS4s located in a Census-defined
Urbanized Area or having been designated by the Director are required
to apply for permits (see 40 CFR 122.32). Maps of Urbanized Areas and
lists of cities and counties within them are available online at http://cfpub.epa.gov/npdes/stormwater/urbanmaps.cfm.
Subsequent to EPA Region 6's proposal of the general permit for
sMS4s on September 9, 2003, the U.S. Court of Appeals for the Ninth
Circuit denied EPA's petition for rehearing in litigation over EPA's
storm water Phase II regulations. Environmental Defense Center, et al.
v. EPA, No. 70014 & consolidated cases (9th Cir., Sept. 15, 2003).
Plaintiffs in that litigation challenged the Phase II NPDES storm water
regulations issued by EPA pursuant to Clean Water Act (CWA) Section
402(p)(6). Among other things, the Phase II regulations require NPDES
permits for storm water discharges from certain MS4s for which NPDES
permits were not required under CWA Section 402(p)(2) and the Phase I
NPDES storm water regulations. The regulations also require the newly
regulated MS4s to develop, implement, and enforce a storm water
management program containing, amongst other things, best management
practices (BMPs) identified by the discharger. The regulations
authorize the use of general permits and require that these BMPs (as
well as measurable goals associated with these BMPs) be identified in
the NOI filed by the MS4 in seeking authorization under a general
permit. Relying on the ``traditional'' general permit model, the Agency
did not require NOIs to be reviewed by the Agency, made available to
the public for review and comment, or to be subject to public hearings.
The Ninth Circuit held that EPA's failure to address these issues in
establishing NOI requirements violated various provisions of CWA
Section 402, and remanded the Phase II regulations on three grounds
related to the use of NPDES general permits to authorize discharges
from sMS4s: (1) Public availability of NOIs, (2) opportunity for public
hearing, and (3) permitting authority review of NOIs.
On April 16, 2004, EPA's Office of Wastewater Management issued
guidance to NPDES permitting authorities entitled ``Implementing the
Partial Remand of the Stormwater Phase II Regulations Regarding NOIs &
NPDES General Permitting for Phase II MS4s'' (available at http://www.epa.gov/npdes/pubs/hanlonphase2apr14signed.pdf). This document
provides guidance to permitting authorities on addressing the Court's
partial remand when issuing general permits for sMS4s. Today's final
general permit contains conditions responsive to the partial remand of
the Phase II regulations and issues raised in the Court's decision and
is consistent with EPA's Office of Wastewater Management Guidance. The
final general permit also contains conditions responsive to public
comments on the proposed permit and state and tribal certification of
the permit under Section 401 of the CWA.
II. Summary of Significant Changes From the Draft Permits
The following is a list of significant changes from the proposed
permit. The rationales for these changes, as well as information about
other less significant changes, are discussed below and in the Response
to Comments document available as indicated in the ``FOR FURTHER
INFORMATION CONTACT'' section above. Additional minor clarifications
and corrections made to the final permit are discussed separately in
Section III.
1. Coverage under the general permit for Indian Country in New
Mexico (NMR04000I) will not be available for discharges on the Pueblo
of Sandia.
2. Conditions applicable only to specific state and tribal areas
have been added to Part 8. These conditions generally consist of
requirement for MS4s within their jurisdiction to provide documents to
a State or Tribal agency. Under Part 8.1.2, all dischargers in the
Albuquerque Urbanized Area are required to submit copies of NOIs,
annual reports, and certain other information to the Pueblo of Isleta.
Due to denial of CWA Sec. 401 certification of the permit, areas
covered by the permit do not include the Pueblo of Sandia.
3. Part 1.2.3 was added to the permit to provide for enhanced
public access to and ability to comment on the NOI (and Storm Water
Management Program attachment).
4. Part 1.2.4 was added to provide a mechanism for the MS4 operator
to provide EPA with responses to any comments in order to assist EPA in
making permit coverage decisions.
5. The eligibility requirements related to endangered species
protection at Part 1.5 and Appendix A have been revised.
[[Page 32656]]
Only where no listed species or critical habitat are in proximity to
the MS4's discharges or discharge-related activities will coverage be
available without at least an informal consultation with the U.S. Fish
and Wildlife Service.
6. Part 2.1.3 has been revised to specify that permit coverage
occurs only after written notification by the Director.
7. NOI procedures in Part 3 have been revised. NOIs will be due by
October 1, 2007. There will be a 30-day opportunity for the public to
review, comment, and request a public meeting/hearing on individual
NOIs, and Part 2.1.3 has been changed so coverage will not be effective
until notification by the Director. EPA has been alerted by several MS4
operators that satisfying permit eligibility requirements, especially
with regard to protection of endangered species, could prevent some
sMS4s from meeting the NOI deadline. A MS4 operator is prohibited by
the terms of the permit from submitting an NOI until all eligibility
conditions have been met. Part 3.1.4 of the permit does allow submittal
of late NOIs, which would provide earlier discharge authorization than
the individual permit issuance process. To allow more time to work
through eligibility issues and provide time for local notice and review
of the NOI 60 days prior to submittal, the NOI due date has been set as
October 1, 2007. MS4s having difficulty meeting the eligibility
conditions for submittal of an NOI, should notify EPA (see address in
Part 3.3) of the circumstances causing the delay and progress made to
date and then proceed as expeditiously as possible with NOI submittal
under Part 3.1.4. For clarification, Part 1.2.3.1 requires local notice
and opportunity for public review of the NOI and attachments at least
60 days prior to submittal, with the expectation, but not requirement,
that the local review period would be 30 days with the remaining 30
days used by the MS4 operator to review and respond to local comments.
8. Part 5.2.4.3 has been revised to clarify that construction site
operators are ultimately responsible for performance of BMPs at their
construction site.
9. Part 5.6 has been revised to clarify requirements for analytical
vs. non-analytical monitoring and to include more specific monitoring
and/or data collection requirements for discharges to impaired waters
or waters where an applicable total maximum daily load (TMDL) has been
established. A proposed monitoring/assessment plan must be submitted to
the Director as part of the first annual report. For discharges to
waters on the State's CWA 303(d) list of impaired waters or for which a
TMDL has been developed or approved by EPA, the Monitoring/Assessment
Plan must include collection of information on the levels of the
pollutant(s) of concern in the discharge. Collection of analytical data
will be required for MS4s discharging to waters with TMDLs that have
specific allocations for the MS4 operator's discharges. Dischargers to
impaired waters prior to development of a TMDL or waters with TMDLs
that do not specify an allocation for MS4s will be required to gather
analytical data, but have the flexibility to participate in cooperative
sampling programs or take advantage of existing representative data.
Monitoring or assessment recommendations in a TMDL may be used in the
proposed monitoring/assessment plan.
10. Part 5.2.4.3 has been revised to clarify that while the MS4
will be reviewing site plans, the construction site operator is
ultimately responsible for the performance of the storm water controls
selected for the project.
11. Part 5.8.1 contains revisions and a new Part 5.8.1.7 has been
added to help ensure the public will have the opportunity to review and
provide local input on the annual reports and revisions to the storm
water management program as it evolves. The due dates for the annual
reports required by Part 5.8.1 have been changed to October 1, 2008,
and annually on October 1st thereafter. The reporting period for the
Annual Report has been set as July 1--June 30th. Note that this change
in the reporting period coincides with the fiscal year used by many
municipalities in New Mexico and should ease report preparation for
items tracked locally on a fiscal year basis for budgetary purposes.
12. Monitoring requirements at Part 5.6 have been revised to
provide clearer expectations and requirements for analytical vs. non-
analytical monitoring and assessment programs, particularly with regard
to discharges to impaired waters and waters for which a TMDL has been
developed or approved. For example, where a specific waste load
allocation under a TMDL applies to the MS4's discharges, analytical
monitoring will be required to be included in the MS4's monitoring and
assessment plan.
13. Addendum E was added to outline the process for providing
comments and/or requesting a public meeting/hearing on NOIs during the
30-day public review period described in Section B of Addendum E. Note
that a minor correction to Section B is described below.
III. Revisions and Corrections to the Permit and Response to Comments
Documents
EPA has also made typographical and other minor corrections/
clarifications to the permit and Response to Comment documents.
Revisions and Corrections to Permit
1. Simple typographical corrections (e.g., spelling, format,
grammar, etc.) have been made to the permit.
2. A footnote has been added to Part 3.1.1 to provide direction to
MS4 operators who are not able to complete all activities necessary to
meet permit eligibility in time to meet the due date for NOIs. For
example, EPA recognizes that completion of Endangered Species Act
consultations can proceed along time lines outside the control of MS4
operator, but are a prerequisite for submittal of an NOI.
3. Consistent with Response to Comment No. 29 and to correct an
editorial error, sections of Part 5.2 have been corrected so
requirements under each of the six minimum control measures to identify
parties responsible for implementing that portion of the Storm Water
Management Program all consistently allow for identification of either
the ``* * * person(s) or position(s) responsible * * *.''
4. Part 5.7.3, described in Response to Comment No. 23, was
inadvertently omitted from the final permit due to a typographical
error and has been reinserted. Part 5.7.3 simply highlights the
requirement, not as clearly stated in Part 5.7.1 and 5.7.2, to maintain
records related to how the permittee determined permit eligibility with
regard to Parts 1.4.6, 1.5, and 1.6. No additional record keeping
burden is imposed, but the likelihood of permit non-compliance due to
failure to recognize the duty to retain such records has been reduced.
5. Part 5.8.1. has been revised to include a footnote offering the
option to base the the Annual Report on the permittee's fiscal year
rather than the default July-June reporting year, provided the
permittee notifies EPA by the first October 1st following permit
authorization that this option will be used and confirms the dates of
the permittee's fiscal year. Annual Reports based on alternative fiscal
years must be submitted no later than (90) days following the end of
the fiscal year. During the November 2006, public meeting on the final
permits, attendees questioned whether the permit could allow reporting
on a fiscal year basis to avoid the additional burden of tracking and
reporting information on a calendar year basis for permit purposes when
[[Page 32657]]
most information was tracked locally on a fiscal year basis for
budgetary purposes. The revised July 1-June 30 annual report period
will accommodate most MS4s using the New Mexico fiscal year, but some
MS4s may have alternative fiscal years, so flexibility to use
alternative fiscal years has been added. This flexibility in the annual
report period and due date will still allow the public and regulators
to assess the permittee's activities in 12 month increments. Requiring
the Annual Report to be submitted within 90 days following the end of
the fiscal year will ensure that information in the report will not be
stale by the time the public and regulatory agencies review it and is
consistent with the time frame in the permit. Having a reporting period
coinciding with the local fiscal year may also make local review and
public input less confusing.
6. Consistent with Response to Comment No. 22, Part 1.4.6, second
paragraph, first sentence has been corrected to replace ``* * * should
consult * * * '' with ``* * * must consult * * *.''
7. In Addendum A, references to the U.S. Fish and Wildlife Web site
for information on endangered species has been updated to the current
link: http://www.fws.gov/southwest/es/EndangeredSpecies/lists/.
8. Consistent with Response to Comment No. 33, Addendum C the
correct cross references in Item 4 to Part 1.4.6 and Item 7 to Part 5.2
have been added.
9. Addendum E, Section B. has been modified to clarify that the 30-
day deadline for submittal of comments on an NOI begins when the NOI
information is posted on EPA Region 6's small MS4 NOI web page. The
word ``filed'' was inadvertently used in the same sentence in two
separate ways. Comments will be due ``* * * within thirty (30) days of
the date the NOI is posted on the Web site in Section A.''
10. Part 2.2.3.6 has been corrected to provide the address for
submittal of Notices of Termination and remove a reference regarding
submittal of copies to the State of New Mexico (which is independently
required under Part 8.1.1).
Revisions and Corrections to the Response to Comments Documents
1. Response to Comment No. 9 should refer to Response to Comment
No. 48 instead of No. 37.
2. Due to an editing error, the last paragraph in Response to
Comment No. 28 was inadvertently included in the final document. The
final permit did not include a table of expectations for interim
progress (which in any event would have been in Part 5 and not Part 4).
EPA determined that a single set of expectations could not take into
account what programs were already being implemented and what
challenges an individual MS4 would face in developing and implementing
their programs. Due to the subjective nature of ``credible interim
progress,'' the Director will need to evaluate this requirement on a
case-by-case basis taking into account the unique situation at a
particular MS4. EPA expects that programs will consist of a combination
of existing programs, initial effort programs, and schedules for final
programs. For example, the initial programs could be based on
activities currently underway, activities which can be implemented in
the short term (i.e., with existing resources, without changes in
ordinances, by relying on available guidance and materials, etc.), and
pilot programs. The initial program could also include activities
(e.g., illicit discharge screening of the system, etc.) to help
prioritize activities and refine options as the final program evolves.
In general, EPA would expect that activities such as public involvement
would have to begin early in the permit cycle to allow for public input
on the final program. The public education, illicit discharge detection
and elimination, and proper operation and maintenance/good housekeeping
at municipal operations programs would not be expected to take 2-3
years to have in place, with initial program implementation possible
earlier. The full construction and post-construction final programs,
unless existing programs can be used, would be expected to take 3-5
years to implement due to the need to develop (or adapt) and adopt
local standards, rules/ordinances, etc.
3. Response to Comment No. 32 should refer to Part 5.8.1.5 instead
of Part 5.6.1.
4. Revisions discussed in Sections II and III supercede any
conflicting responses in the September 29, 2006, Response to Comments
document.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 31, 2007.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. E7-11316 Filed 6-12-07; 8:45 am]
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