Proposed Rule2022-26227
NPDES Small MS4 Urbanized Area Clarification
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 2, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to clarify its National Pollutant Discharge Elimination System (NPDES) Stormwater Phase II regulations due to recent changes made by the Census Bureau. The changes to EPA's regulations would be limited to clarifying that the designation criteria for small municipal separate storm sewer systems (MS4s), which have been used since the promulgation of the regulations in 1999, would remain the same. These clarifications are necessary due to the Census Bureau's recent decision to discontinue its practice of publishing the location of "urbanized areas" along with the 2020 Census and future censuses. The clarification in this proposed rulemaking would replace the term "urbanized area" in the Phase II regulations with the phrase "urban areas with a population of at least 50,000," which is the Census Bureau's longstanding definition of the term urbanized areas. This change would allow NPDES permitting authorities to use 2020 Census and future Census data in a manner that is consistent with existing longstanding regulatory practice. Because this clarification would maintain the current scope of which entities are regulated as small MS4s, and is not expected to generate opposition, EPA is also publishing the same clarification in the Federal Register as a direct final rule. As is EPA's practice for direct final rules, if the Agency receives adverse comments in response to either the direct final rule or this proposed rulemaking, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect and will address public comments received in any final rule action.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 231 (Friday, December 2, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 231 (Friday, December 2, 2022)]
[Proposed Rules]
[Pages 74066-74072]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26227]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 123
[EPA-HQ-OW-2022-0834; FRL-10123-01-OW]
RIN 2040-AG27
NPDES Small MS4 Urbanized Area Clarification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
clarify its National Pollutant Discharge Elimination System (NPDES)
Stormwater Phase II regulations due to recent changes made by the
Census Bureau. The changes to EPA's regulations would be limited to
clarifying that the designation criteria for small municipal separate
storm sewer systems (MS4s), which have been used since the promulgation
of the regulations in 1999, would remain the same. These clarifications
are necessary due to the Census Bureau's recent decision to discontinue
its practice of publishing the location of ``urbanized areas'' along
with the 2020 Census and future censuses. The clarification in this
proposed rulemaking would replace the term ``urbanized area'' in the
Phase II regulations with the phrase ``urban areas with a population of
at least 50,000,'' which is the Census Bureau's longstanding definition
of the term urbanized areas. This change would allow NPDES permitting
authorities to use 2020 Census and future Census data in a manner that
is consistent with existing longstanding regulatory practice. Because
this clarification would maintain the current scope of which entities
are regulated as small MS4s, and is not expected to generate
opposition, EPA is also publishing the same clarification in the
Federal Register as a direct final rule. As is EPA's practice for
direct final rules, if the Agency receives adverse comments in response
to either the direct final rule or this proposed rulemaking, EPA will
publish a timely withdrawal of the direct final rule in the Federal
Register informing the public that the rule will not take effect and
will address public comments received in any final rule action.
DATES: Comments on this proposed rule must be received on or before
January 3, 2023.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2022-0834 to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Follow the online
instructions for submitting comments.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Written Comments''
heading of the Public Participation section of this document.
FOR FURTHER INFORMATION CONTACT: Heather Huddle, Water Permits Division
(MC4203), Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington DC 20004; telephone number: (202) 564-7932; email address:
<a href="/cdn-cgi/l/email-protection#d5bda0b1b1b9b0fbbdb0b4a1bdb0a795b0a5b4fbb2baa3"><span class="__cf_email__" data-cfemail="254d50414149400b4d4044514d4057654055440b424a53">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This proposed rulemaking to clarify the
NPDES small MS4 urbanized area definition is being published in tandem
with a direct final rule published in the ``Rules'' section of the
Federal Register under the same title. Both this proposed rulemaking
and the separate direct final rule would make the same clarification to
the Phase II regulations. Both actions are limited to clarifying that
EPA will retain the existing threshold for automatic designation of
small MS4s for regulation under the Phase II stormwater permitting
regulations. The threshold for automatic designation was used following
the 2000 and 2010 Censuses and is based on the MS4 being in an
urbanized area of 50,000 or more people. Both this proposed rulemaking
and the direct final rule actions would maintain the threshold for
automatic designations of small MS4s and would ensure that the
designation of new MS4s will continue as originally required under the
Phase II regulations. EPA explains that the Agency views this as a
noncontroversial action and anticipates no adverse comment. However, if
EPA receives adverse comment in response to either publication, the
Agency will publish a timely withdrawal of the direct final rule in the
Federal Register informing the public that the direct final rule will
[[Page 74067]]
not take effect. EPA would then address public comments as required as
part of any subsequent final rule based on the proposed rulemaking.
Table of Contents
I. Public Participation
A. Written Comments
B. Tips for Preparing Your Comments
II. General Information
A. Does this action apply to me?
B. What action is EPA taking?
C. What is the Agency's authority for taking this action?
D. Background
III. Rationale and Summary of Proposed Rule
A. Why a Change to the Phase II Regulations Is Appropriate
B. Rationale for Proposed Clarification to Phase II Regulations
C. Summary of Proposed Changes to Phase II Regulations
D. Costs of This Proposed Action
E. Implementation and Technical Assistance
IV. 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 (NTTAA)
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2022-
0834, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Once submitted, comments cannot
be edited or removed from the docket. EPA may publish any comment
received to its public docket. Do not submit to EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to be Confidential
Business Information (CBI), Proprietary Business Information (PBI), 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). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the full EPA public comment
policy; information about CBI, PBI, or multimedia submissions; and
general guidance on making effective comments.
B. Tips for Preparing Your Comments
When submitting comments, remember to:
<bullet> Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
<bullet> Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
<bullet> Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
<bullet> Describe any assumptions and provide any technical
information and/or data that you used.
<bullet> If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
<bullet> Provide specific examples to illustrate concerns and
suggest alternatives.
<bullet> Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
<bullet> Make sure to submit your comments by the comment period
deadline identified.
II. General Information
A. Does this action apply to me?
Entities potentially regulated by this proposed action include:
------------------------------------------------------------------------
North American
industry
Category Examples of regulated classification
entities system (NAICS)
code
------------------------------------------------------------------------
Federal and state government... EPA or state NPDES 924110
stormwater permitting
authorities.
Local governments.............. Operators of small 924110
municipal separate
storm sewer systems.
State government............... State departments of 926120
transportation.
Military....................... Federal military bases. 928110
Public academic institutions... Publicly-administered 611310
colleges,
universities, and
professional schools.
------------------------------------------------------------------------
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 includes the types of entities that the EPA is now
aware could potentially be regulated by this action. Other types of
entities not included could also be regulated. To determine whether
your entity is regulated by this action, you should carefully examine
the applicability criteria found in 40 CFR 122.28, 122.32, and 122.35,
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 EPA taking?
EPA is proposing to clarify its NPDES Phase II regulations due to
recent changes made by the Census Bureau. The proposed changes to EPA's
regulations are limited to clarifying that the designation criteria for
small MS4s, which have been used since the promulgation of the
regulations in 1999, will remain the same. The clarification would be
effectuated by replacing the term previously used by the Census Bureau,
``urbanized area,'' with the phrase ``urban areas with a population of
at least 50,000,'' which is the Census Bureau's longstanding criteria
for defining urbanized areas.
[[Page 74068]]
C. What is the Agency's authority for taking this action
The authority for this rulemaking is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 402 and 501.
D. Background
1. Statutory and Regulatory Overview
Stormwater discharges are subject to regulation under section
402(p) of the Clean Water Act (CWA). Under this provision, Congress
required the following stormwater discharges initially to be subject to
NPDES permitting requirements: stormwater discharges for which NPDES
permits were issued prior to February 4, 1987; discharges ``associated
with industrial activity;'' discharges from MS4s serving populations of
100,000 or more; and any stormwater discharge determined by EPA or a
state to ``contribute . . . to a violation of a water quality standard
or to be a significant contributor of pollutants to waters of the
United States.'' Congress further directed EPA to study other
stormwater discharges and determine which discharges needed additional
controls.
EPA developed the stormwater regulations under section 402(p) of
the CWA in two phases, as directed by the statute. In the first phase,
under section 402(p)(4) of the CWA, EPA promulgated regulations
establishing application and other NPDES permit requirements for
stormwater discharges from medium (serving populations of 100,000 to
250,000) and large (serving populations of 250,000 or more) MS4s, and
stormwater discharges associated with industrial activity. EPA
published the final Phase I rule on November 16, 1990. 55 FR 47990. The
Phase I rule, among other things, defined ``municipal separate storm
sewer'' as publicly-owned conveyances or systems of conveyances that
discharge to waters of the United States and are designed or used for
collecting or conveying stormwater, are not combined sewers, and are
not part of a publicly-owned treatment works. 40 CFR 122.26(b)(8).
In the second phase, section 402(p)(5) and (6) of the CWA required
EPA to conduct a study to identify other stormwater discharges that
needed further controls ``to protect water quality,'' report to
Congress on the results of the study, and designate for regulation
additional categories of stormwater discharges not regulated in Phase I
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. 40 CFR 122.32(a)(1) (``you are regulated if you operate a small
MS4, including but not limited to systems operated by Federal, State,
Tribal, and local governments, including State departments of
transportation; and . . . [y]our small MS4 is located in an urbanized
area as determined by the latest Decennial Census by the Bureau of the
Census.'').
Separate storm sewer systems such as those serving military bases,
universities, large hospitals or prison complexes, and highways are
also included in the definition of ``small MS4.'' 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 through 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. 40
CFR 122.32(a)(2), 123.35(b)(3).
2. History of Using Urbanized Area Population Threshold for Small MS4
Designations
Since the 1950 Census, the Census Bureau has defined ``urbanized
area'' as ``one or more cities of 50,000 or more and all the nearby
closely settled suburban territory, or urban fringes. '' \1\ This
definition was in effect when EPA promulgated the Phase II Rule in
1999, and for the two censuses (2000 and 2010 Census) that have been
published since then.\2\ The Census Bureau's use of this population
threshold is significant for the Phase II permit program because where
an MS4 is located within an area identified in the latest decennial
Census as having a minimum population of 50,000 or more people (i.e.,
in an ``urbanized area''), the MS4 is automatically designated as
regulated under the Phase II regulations.
---------------------------------------------------------------------------
\1\ 1950 Census of Population--Preliminary Counts, Population of
Urbanized Areas: April 1, 1950, U.S. Department of Commerce, Bureau
of the Census. Series PC-3 No. 9. February 1, 1951. See <a href="https://www2.census.gov/library/publications/decennial/1950/pc-03/pc-3-09.pdf">https://www2.census.gov/library/publications/decennial/1950/pc-03/pc-3-09.pdf</a>.
\2\ Urbanized areas have been defined by the Census Bureau as
``urban areas that contain 50,000 or more people . . .''. See 76 FR
53030, 53039 (August 24, 2011); and 67 FR 11663, 116667 (March 15,
2002).
---------------------------------------------------------------------------
The Phase II regulations have referred to the term ``urbanized
area'' since the small MS4 program's inception and this term has always
been used synonymously with the 50,000 population threshold. When EPA
initially promulgated the Phase II regulations, EPA explained that it
was adopting the Census Bureau's definition of ``urbanized area'' as
one of the designation criteria for small MS4s and provided a
definition of ``urbanized area'' that was identical to the Census
Bureau's definition. EPA stated in the preamble to the Phase II rule
that ``[u]nder the Bureau of the Census definition of `urbanized area,'
adopted by EPA for the purposes of this final rule, `an urbanized area
(UA) comprises a place and the adjacent densely settled surrounding
territory that together have a minimum population of 50,000 people.'''
64 FR 68722, 68751 (December 8, 1999).
EPA acknowledged that the Census Bureau could in the future change
the criteria by which it defines ``urbanized area,'' which would then
in turn affect the way in which new small MS4s would be automatically
designated. It is for this reason that EPA explained in the Phase II
rule preamble that new MS4 designations ``will be governed by the
Bureau of the Census' definition of an urbanized area in effect for
that year.'' 64 FR 68722, 68751 (December 8, 1999). However, the Census
Bureau has not changed the 50,000 population threshold since they
adopted it 70 years ago. From the small MS4 permit program's inception
in 1999, therefore, EPA and state permitting authorities have always
relied on the 50,000 population threshold to automatically designate
and regulate MS4s. It is only now with the 2020 Census that the Census
Bureau has announced its decision to no longer separately identify
``urbanized areas.'' 87 FR 16706, 16707 (March 24, 2022).
III. Rationale and Summary of Proposed Rule
A. Why a Change to the Phase II Regulations Is Appropriate
This section explains how the Census Bureau's elimination of the
term ``urbanized area'' relates to which MS4s are automatically
designated for regulation under the Phase II regulations based on the
2020 Census and subsequent censuses.
The Census Bureau's elimination of the term ``urbanized area'' does
not
[[Page 74069]]
impact small MS4s that are already regulated under the Phase II rule.
For those small MS4s already regulated because of their location in an
``urbanized area'' designated by a previous census, the Phase II
regulatory history indicates that a subsequent Census Bureau change to
the designation criteria for urbanized areas does not affect their
regulatory status. EPA stated in the Phase II rule preamble that even
if the Census Bureau were to change its ``urbanized area'' definition,
``a small MS4 that is automatically designated into the NPDES program
for storm water under an urbanized area calculation for any given
Census year will remain regulated regardless of the results of
subsequent urbanized area calculations.'' 64 FR 68722, 68751 (December
8, 1999).\3\ EPA's regulations, therefore, require continued regulation
of previously designated small MS4s despite the Census Bureau's change.
EPA notes that this does not prevent the operator of a qualifying MS4
so designated from requesting consideration of an NPDES waiver under 40
CFR 122.32(c).
---------------------------------------------------------------------------
\3\ EPA's statement in its entirety: ``Based on historical
trends, EPA expects that any area determined by the Bureau of the
Census to be included within an urbanized area as of the 1990 Census
will not later be excluded from the urbanized area as of the 2000
Census. However, it is important to note that even if this situation
were to occur, for example, due to a possible change in the Bureau
of the Census' urbanized area definition, a small MS4 that is
automatically designated into the NPDES program for storm water
under an urbanized area calculation for any given Census year will
remain regulated regardless of the results of subsequent urbanized
area calculations.''
---------------------------------------------------------------------------
The existing Phase II regulatory text does not explicitly instruct
EPA how to treat the designation of new MS4s due to the fact that the
Census Bureau's decennial censuses will no longer separately identify
``urbanized areas.'' For the 1999 Phase II rule, EPA always intended
the universe of regulated small MS4s to grow in a manner commensurate
with the growth of ``urbanized areas'' as identified by the latest
decennial census. However, while the Phase II rule preamble explained
that new MS4s would be designated in accordance with the latest census
definition of ``urbanized area,'' it did not provide instruction on
what to do if a decennial census no longer identifies the location of
such urbanized areas. EPA is proposing this action to address the
Census Bureau's changes and clarify for permitting authorities and the
public that it intends the scope of which small MS4s are regulated to
not change, and that it would rely on what that term has always meant
rather than having the regulations reference an out-of-date term.
B. Rationale for Proposed Clarification to Phase II Regulations
The most straightforward way for EPA to clarify its regulations in
a manner that maintains program continuity and consistency is to
replace the reference to ``urbanized area'' in the Phase II regulations
with text that replicates the 50,000 population threshold on which the
Census Bureau and NPDES authorities have historically relied. As
discussed in Section II.D.2 of this preamble, from the inception of the
small MS4 permitting program, the 50,000 population threshold has been
used synonymously with the term ``urbanized area'' by both the Census
Bureau and NPDES permitting authorities. Replacing the term ``urbanized
area'' with text that incorporates this same 50,000 population
threshold would mean that the existing method for designating small
MS4s following the latest decennial census would be identical to how it
has always been implemented. This proposed change would thus ensure
that there is no disruption in the designation of new MS4s and that the
program would be implemented in a historically consistent manner.
Substituting the obsolete references to ``urbanized areas'' with
the 50,000 population threshold would also ensure that new Census 2020
mapping data and subsequent census mapping data can be used seamlessly
to identify newly regulated MS4s. Prior to the recent Census Bureau
changes, the location of any ``urbanized areas'' would have been
automatically identified with any decennial census. Moving forward,
however, each decennial census will be limited to identifying ``urban
areas'' without identifying ``urbanized areas'' within those areas.
Even though ``urbanized area'' locations will no longer be provided as
part of the 2020 Census and future censuses, the Census Bureau will
continue to provide population data for each identified urban area.\4\
The availability of these population data will enable EPA and state
permitting authorities to easily identify which urban areas have
populations of 50,000 or more people and, therefore, to provide the
necessary information to designate new MS4s.
---------------------------------------------------------------------------
\4\ In its 2020 Urban Areas Frequent Asked Questions, the Census
Bureau provided the following answer in response to the question
``Is it true that the Census Bureau is no longer defining urbanized
areas?'': ``No. The Census Bureau will no longer identify an
individual urban area as either an urbanized area or an urban
cluster. We will refer to all areas as ``urban areas'' regardless of
population size. We will publish population and housing counts for
each urban area when we announce results of the 2020 Census urban
area delineation. Data users and program will be able to use those
counts and subsequent American Community Survey estimates to
categorize urban areas according to population size.'' (emphasis
added) See <a href="https://www2.census.gov/geo/pdfs/reference/ua/2020_Urban_Areas_FAQs.pdf">https://www2.census.gov/geo/pdfs/reference/ua/2020_Urban_Areas_FAQs.pdf</a>.
---------------------------------------------------------------------------
C. Summary of Proposed Changes to Phase II Regulations
The proposed changes to the Phase II regulations are limited to
replacing the existing references to ``urbanized area'' as a criterion
for designating small MS4s for regulation with text that incorporates
the underlying population threshold associated with that term, or more
specifically ``urban areas with a population of 50,000 or more
people.'' This change would be made in the following specific sections:
<bullet> 40 CFR 122.28(a)(1)(vi): This provision describes the
requirement that general permits can only be used to provide coverage
to discharges in a specific geographic area. The change here would be
to the existing list of examples of geographic or political boundary
areas that meet this requirement, which currently refer to ``urbanized
areas'' as one of the examples. The reference to ``urbanized areas''
here would be replaced by the described 50,000 population threshold.
<bullet> 40 CFR 122.32(a)(1): This provision currently specifies
that small MS4s located in ``urbanized areas'' are regulated as small
MS4s. The reference to ``urbanized areas'' here would be replaced by
the described 50,000 population threshold.
<bullet> 40 CFR 122.32(d): This provision indicates that small MS4s
regulated under 40 CFR 122.32(a)(1) for ``urbanized areas'' may be
eligible for an NPDES waiver if they meet the applicable criteria. The
reference to ``urbanized areas'' here would be substituted with a
reference to the revised text in 40 CFR 122.32(a)(1).
<bullet> 40 CFR 122.33(b)(3): This provision references the ability
of regulated small MS4s located in the same ``urbanized area'' as a
medium or large MS4 to be included as a limited co-permittee in the
same NPDES permit as the medium or large MS4. The reference to
``urbanized area'' would be modified to read ``urban area'' instead.
<bullet> 40 CFR 123.35(b)(1)(ii): This provision includes a
reference to an ``urbanized area'' in the context of regulatory
guidance on criteria that state permitting authorities may use to
designate other small MS4s for regulation, including ``contiguity to an
urbanized area.'' The reference to
[[Page 74070]]
``urbanized area'' would be replaced by the described 50,000 population
threshold.
<bullet> 40 CFR 123.35(b)(2): This provision includes a reference
to an ``urbanized area'' in the context of applying state permitting
authority criteria for designating additional small MS4s for
regulation, including MS4s located outside of an ``urbanized area''
serving a jurisdiction with a population density of at least 1,000
people per square mile and a population of at least 10,000. The
reference to ``urbanized area'' would be replaced by the described
50,000 population threshold.
<bullet> 40 CFR 123.35(d)(1): This provision indicates that small
MS4s regulated under 40 CFR 122.32(a)(1) for ``urbanized areas'' may be
eligible for an NPDES waiver if they meet the applicable criteria. The
reference to ``urbanized areas'' here would be substituted with the
described 50,000 population threshold.
D. Costs of This Proposed Action
The regulatory clarifications in this proposed rulemaking would
ensure that the population basis for regulating small MS4s remain the
same. As a result, these clarifications would not result in increased
costs to small MS4 permittees or to state and EPA permitting programs,
nor would it regulate additional MS4s beyond what was required by the
1999 Phase II regulations.
E. Implementation and Technical Assistance
If no adverse comments are received in response to the direct final
rule or this proposed rulemaking, the changes made by the direct final
rule will become effective on March 2, 2023.
EPA plans to continue to provide technical assistance to permitting
authorities in a number of different ways to help with the
implementation of the MS4 program following publication of the new
census data. The following is a summary of EPA's planned technical
assistance activities:
<bullet> Publish new MS4 mapping information: Following the
publication of the 2020 Census urban area information, EPA will be able
to determine which urban areas have a population of 50,000 or more
people and thereby identify which areas meet the revised rule's
criteria for small MS4s. EPA plans to use the 2020 Census data to
publish mapping information that will show where urban areas with a
population of 50,000 or more people are located in the United States
and where these areas are located with respect to municipal boundaries.
This information will enable permitting authorities to determine which
jurisdictions are likely operating MS4s within urban areas that meet
the 50,000 population threshold. EPA also plans to provide mapping
information that compares the 2010 Census and 2020 Census location of
these urban areas. Permitting authorities will be able to use this
information to pinpoint the location of new MS4s and compare how the
urban area boundaries have changed since the 2010 Census for existing
MS4s.
<bullet> Provide permitting authorities with a draft list of new
MS4s: To assist NPDES permitting authorities, EPA plans to use the
mapping information described under the previous bullet point to
preliminarily identify new MS4s that are located within the urban areas
meeting the population threshold. EPA provided a similar list of new
MS4s following the 2010 Census. Permitting authorities are then free to
evaluate the MS4s identified on this list to determine if they are
accurate and whether any changes are needed.
<bullet> Provide guidance materials: EPA will provide additional
guidance related to the process of permitting newly designated MS4s
that NPDES authorities may choose to use. EPA provided similar guidance
following the publication of the 2010 Census, which included tips on
the suggested steps to follow from initial contact with the new MS4
operators to including them in the applicable NPDES permit. EPA also
provided a letter template that permitting authorities could use to
inform new MS4 operators of their designation and what to expect from
the permitting process moving forward. The Agency plans to update these
materials for the 2020 Census, and to explore what additional technical
assistance may be needed. EPA will engage with its Federal and State
permitting authority partners to determine which type of assistance may
be the most beneficial.
<bullet> Rescind interim guidance: Earlier this year, EPA published
on its website Interim Guidance on Census Elimination of ``Urbanized
Areas'' (see <a href="https://www.epa.gov/npdes/interim-guidance-census-elimination-urbanized-area-definition">https://www.epa.gov/npdes/interim-guidance-census-elimination-urbanized-area-definition</a>). The guidance was intended to
provide interim recommendations to permitting authorities regarding the
implementation of their small MS4 permitting programs following the
finalization of the Census Bureau's designation criteria changes while
EPA evaluated how best to clarify its regulations. If the direct final
rule becomes effective on March 2, 2023 due to the lack of adverse
comments, the interim guidance will no longer be necessary and will be
rescinded.
VI. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an 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. This rule contains no new requirements for
reporting and recordkeeping.
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. In
making this determination, EPA concludes that the impact of concern for
this rule is any significant adverse economic impact on small entities
and that the Agency is certifying that this rule will not have a
significant economic impact on a substantial number of small entities
because the rule has no net burden on the small entities subject to the
rule. EPA is limiting its proposed changes to substituting use of the
term ``urbanized area'' in the four subsections of the Phase II
regulations with the underlying population criteria that has been used
synonymously with this term since the 1999 promulgation of the
regulations. See discussion in Sections III.B and C of this preamble.
Although making this proposed clarification is important to ensure
program continuity and consistency, EPA views this change as akin to a
clerical correction to remove an obsolete term and ensure that program
applicability remains unchanged. The Agency has therefore concluded
that this proposed action will have no net regulatory burden for all
directly regulated small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
[[Page 74071]]
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments, or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The 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 is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color and/or indigenous
peoples) and low-income populations.
The EPA believes that the human health and environmental conditions
that exist prior to this action do not result in disproportionate and
adverse effects on people of color, low-income populations, and/or
indigenous peoples. This action makes a technical clarification to a
previously promulgated regulatory action, and will not change the human
health and environmental conditions that currently exist with the
implementation of the Phase II regulations.
The EPA believes that this action is not likely to result in new
disproportionate and adverse effects on people of color, low-income
populations and/or indigenous peoples. This regulatory action is a
technical clarification to a previously promulgated regulatory action
and does not have any disproportionate and adverse impact on people of
color, low-income populations and/or indigenous peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 122
Environmental protection, Stormwater, Water pollution.
40 CFR Part 123
Environmental protection, Stormwater, Water pollution.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, EPA proposes to amend 40
CFR parts 122 and 123 as set forth below:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
2. Amend Sec. 122.28 by revising paragraph (a)(1)(vi) to read as
follows:
Sec. 122.28 General permits (applicable to State NPDES programs, see
Sec. 123.25).
(a) * * *
(1) * * *
(vi) Urban areas with a population of 50,000 or more people as
determined by the latest Decennial Census by the Bureau of the Census;
or
* * * * *
0
3. Amend Sec. 122.32 by revising paragraph (a)(1) and paragraph (d)
introductory text to read as follows:
Sec. 122.32 As an operator of a small MS4, am I regulated under the
NPDES storm water program?
(a) * * *
(1) Your small MS4 is located in an urban area with a population of
50,000 or more people as determined by the latest Decennial Census by
the Bureau of the Census. (If your small MS4 is not located entirely
within an urban area with a population of 50,000 or more people, only
the portion that is within this urban area is regulated); or
* * * * *
(d) The NPDES permitting authority may waive permit coverage if
your MS4 serves a population of less than 1,000 within the urban area
identified in paragraph (a)(1) of this section and you meet the
following criteria:
* * * * *
0
4. Amend Sec. 122.33 by revising paragraph (b)(3) to read as follows:
Sec. 122.33 Requirements for obtaining permit coverage for regulated
small MS4s.
* * * * *
(b) * * *
(3) Co-permittee alternative. If the regulated small MS4 is in the
same urban area as a medium or large MS4 with an NPDES storm water
permit and that other MS4 is willing to have the small MS4 operator
participate in its storm water program, the parties may jointly seek a
modification of the other MS4 permit to include the small MS4 operator
as a limited co-permittee. As a limited co-permittee, the small MS4
operator will be responsible for compliance with the permit's
conditions applicable to its jurisdiction. If the small MS4 operator
chooses this option it must comply with the permit application
requirements of Sec. 122.26, rather than the requirements of Sec.
122.33(b)(2)(i). The small MS4 operator does not need to comply with
the specific application requirements of Sec. 122.26(d)(1)(iii) and
(iv) and (d)(2)(iii) (discharge characterization). The small MS4
operator may satisfy the requirements in Sec. 122.26 (d)(1)(v) and
[[Page 74072]]
(d)(2)(iv) (identification of a management program) by referring to the
other MS4's storm water management program.
* * * * *
PART 123--STATE PROGRAM REQUIREMENTS
0
5. The authority citation for part 123 continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
0
6. Amend Sec. 123.35 by revising paragraphs (b)(1)(ii), (b)(2), and
(d)(1) introductory text to read as follows:
Sec. 123.35 As the NPDES Permitting Authority for regulated small
MS4s, what is my role?
* * * * *
(b) * * *
(1) * * *
(ii) Guidance: For determining other significant water quality
impacts, EPA recommends a balanced consideration of the following
designation criteria on a watershed or other local basis: discharge to
sensitive waters, high growth or growth potential, high population
density, contiguity to an urban area with a population of 50,000 people
or more as determined by the latest Decennial Census by the Bureau of
the Census, significant contributor of pollutants to waters of the
United States, and ineffective protection of water quality by other
programs;
(2) Apply such criteria, at a minimum, to any small MS4 located
outside of an urban area with a population of 50,000 people or more as
determined by the latest Decennial Census by the Bureau of the Census
serving a jurisdiction with a population density of at least 1,000
people per square mile and a population of at least 10,000;
* * * * *
(d) * * *
(1) You may waive permit coverage for each small MS4s in
jurisdictions with a population under 1,000 within the urban area with
a population of 50,000 people or more as determined by the latest
Decennial Census by the Bureau of the Census where all the following
criteria have been met:
* * * * *
[FR Doc. 2022-26227 Filed 12-1-22; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on December 2, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.