
[Federal Register: December 28, 2009 (Volume 74, Number 247)]
[Notices]               
[Page 68617-68622]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de09-70]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2009-0817; FRL-9095-3]

 
Stakeholder Input; Stormwater Management Including Discharges 
From New Development and Redevelopment

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing its 
plans to initiate national rulemaking to establish a comprehensive 
program to reduce stormwater discharges from new development and 
redevelopment and make other regulatory improvements to strengthen its 
stormwater program. The purpose of this notice is to request input from 
the public to help EPA shape such a comprehensive program and to 
announce EPA's intent to hold several public ``listening sessions'' in 
January 2010. EPA seeks input on this undertaking regarding 
performance, effectiveness and cost of stormwater control measures; 
ecological data, including ecological benefits from stormwater 
controls; technical information on design, implementation and operation 
and maintenance of stormwater control measures; suggestions for how the 
existing program may be modified to better meet the goals of the Clean 
Water Act; and any other information that may help EPA develop 
improvements to the existing program, including better control of 
pollutants in stormwater from the built environment created by 
development and redevelopment.

DATES: Written comments must be submitted on or before February 26, 
2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0817, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     E-mail: OW-Docket@epa.gov, Attention Docket ID No. EPA-HQ-
OW-2009-0817.
     Fax: 202-566-9744.
     Mail: Water Docket, U.S. Environmental Protection Agency, 
Mail code: 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Attention Docket ID No. EPA-HQ-OW-2009-0817.
     Hand Delivery: Water Docket, EPA Docket Center, EPA West 
Building Room 3334, 1301 Constitution Ave., NW., Washington, DC, 
Attention Docket ID No. EPA-HQ-OW-2009-0817. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2009-
0817. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which

[[Page 68618]]

means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through http://www.regulations.gov your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For further information on the notice, 
contact Jonathan Angier, EPA Headquarters, Office of Water, Office of 
Wastewater Management at tel.: 202-564-0729 or e-mail: 
angier.jonathan@epa.gov.
    Public Listening Sessions: EPA will hold several informal public 
listening sessions in January 2010 to gather input on possible 
regulatory changes to the stormwater program. The public listening 
sessions will provide a review of EPA's current regulatory approach to 
permitting stormwater discharges, a summary of the recommendations from 
the National Research Council report Urban Stormwater Management in the 
United States (The National Academies Press, 2009), and potential 
considerations for regulatory changes to strengthen the program. The 
public listening sessions will afford an opportunity for the public to 
provide input on regulatory actions that EPA is considering. Brief oral 
comments (three minutes or less) will be accepted at the sessions, and 
written statements will be accepted. The dates and locations of the 
listening sessions are as follows:
     January 19, 2010, 10 a.m. to 3 p.m. at EPA Region 5 
Office, 77 W. Jackson Blvd., Chicago, IL 60604
     January 20, 2010, 10 a.m. to 3 p.m. at EPA Region 9 
Office, 75 Hawthorne Street, San Francisco, CA 94105
     January 25, 2010, 10 a.m. to 3 p.m. at EPA Region 8 
Office, 1595 Wynkoop Street, Denver, CO 80202-1129
     January 26, 2010, 10 a.m. to 3 p.m. at EPA Region 6 
Office, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202
     January 28, 2010, 10 a.m. to 3 p.m. at EPA HQ Office, 
Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004
    In order to provide adequate seating for those wishing to attend 
EPA's public listening sessions, interested individuals must register 
to attend by January 15, 2010 on the Internet at http://www.epa.gov/
npdes/stormwater/rulemaking.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2009-0817. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Although 
all documents in the docket are listed in an index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. Publicly available docket materials are 
available in hard copy at the EPA Docket Center Public Reading Room, 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 
566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. Electronic versions of this 
notice and other stormwater documents are available at EPA's stormwater 
Web site http://www.epa.gov/npdes/stormwater/rulemaking.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search'', 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in Section I.A.1.
    Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark all of the information that you 
claim to be CBI. For CBI information on computer discs mailed to EPA, 
mark the surface of the disc as CBI. Also identify electronically the 
specific information contained in the disc or that you claim is CBI. In 
addition to one complete version of the specific information claimed as 
CBI, you must submit a copy that does not contain the information 
claimed as CBI for inclusion in the public document. Information so 
marked will not be disclosed except in accordance with procedures set 
forth in 40 CFR Part 2.
    It is important to note that EPA's policy is that public input, 
whether submitted electronically or in paper, will be made available 
for public viewing in EPA's electronic public docket as EPA receives 
them and without change, unless the input contains copyrighted 
material, CBI, or other information whose disclosure is restricted by 
statute. When EPA identifies any input containing copyrighted material, 
EPA will provide a reference to that material in the version of the 
document that is placed in EPA's electronic public docket. The entire 
printed submittal, including the copyrighted material, will be 
available in the public docket.
    Documents submitted on computer disks that are mailed or delivered 
to the docket will be transferred to EPA's electronic public docket. 
Input that is mailed or delivered to the Docket will be scanned and 
placed in EPA's electronic public docket. Where practical, physical 
objects will be photographed, and the photograph will be placed in 
EPA's electronic public docket along with a brief description written 
by the docket staff.

B. How and to Whom Do I Submit Input?

    You may submit input electronically, by mail, through hand 
delivery/courier, or in person by attending one of the 5 listening 
sessions. To ensure proper receipt by EPA, identify the appropriate

[[Page 68619]]

docket identification number in the subject line on the first page of 
your input. Please ensure that your input is submitted within the 
specified comment period.
    1. Electronically. If you submit electronic input as prescribed 
below, EPA recommends that you include your name, mailing address, and 
an e-mail address or other contact information in the body of your 
comment. Also include this contact information on the outside of any 
disk or CD-ROM you submit, and in any cover letter accompanying the 
disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your submittal due to technical difficulties or needs 
further information on the substance of your input. EPA's policy is 
that EPA will not edit your input, and any identifying or contact 
information provided in the body of the text will be included as part 
of the input that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
submittal due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your input.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
provide input to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/
edocket, and follow the online instructions for submitting input. Once 
in the system, select ``search'', and then key in Docket ID No. EPA-HQ-
OW-2009-0817. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it.
    ii. E-mail. Input may be sent by electronic mail (e-mail) to ow-
docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-2009-0817. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail directly to the 
Docket without going through EPA's electronic public docket, EPA's e-
mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the submittal that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD-ROM. You may submit input on a disk or CD-ROM that 
you mail to the mailing address identified in this section. These 
electronic submissions will be accepted in Microsoft Word or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send the original and three copies of your input to: 
Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
EPA-HQ-OW-2009-0817.
    3. By Hand Delivery or Courier. Deliver your input to: Public 
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, 
NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-2009-0817. 
Such deliveries are only accepted during the Docket's normal hours of 
operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays).

II. Background

Statutory and Regulatory Overview

    Under section 402(p) of the Clean Water Act, the Environmental 
Protection Agency regulates stormwater discharges from municipal 
separate storm sewer systems (publicly owned conveyances or systems of 
conveyances that discharge to waters of the U.S. and are designed or 
used for collecting or conveying storm water, are not combined sewers, 
and are not part of a publicly owned treatment works), stormwater 
discharges associated with industrial activity, and stormwater 
discharges from construction sites of one acre or larger. See 40 CFR 
122.26(a). Under EPA's regulations, these stormwater discharges are 
required to be covered by National Pollutant Discharge Elimination 
System (NPDES) permits.
    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 
requirements for NPDES permits for stormwater discharges from medium 
and large municipal separate storm sewer systems (MS4s) (serving 
populations of 100,000 or more) and stormwater discharges associated 
with industrial activity. EPA published the final Phase I rule on 
November 16, 1990 (55 FR 47990). See 40 CFR 122.26. The Phase I rule, 
among other things, defined ``stormwater discharges associated with 
industrial activity'' to include construction sites of five acres or 
larger. 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. EPA promulgated the Phase II rule on December 
8, 1999, designating small MS4s and small construction sites (1-5 
acres) and requiring NPDES permits for these discharges. 64 FR 68722.
    With respect to MS4s, the Phase I regulations are primarily 
application requirements that identify components that must be 
addressed in permit applications from large and medium MS4s. The 
regulations require these MS4s to develop a stormwater management 
program (SWMP), track and oversee industrial facilities regulated under 
the NPDES stormwater program, conduct monitoring, and submit periodic 
reports.
    Under the Phase II rule, regulated small MS4s are generally defined 
as any MS4 that is not already covered by the Phase I program and that 
are located within the urbanized area boundary as determined by the 
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, a small MS4 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), 123.35(b)(3).
    Phase II stormwater regulations also require that the MS4, under 
the permit, implement stormwater management programs (SWMPs), and 
require 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. Regulations 
applicable to Phase II MS4 permits are found in 40 CFR 122.30-122.37. 
In general, Phase II MS4 permits are general permits, although small 
MS4s may apply for individual permits under the Phase I rule's 
application provisions in 40 CFR 122.26(d).
    Under section 402(p)(6), EPA is authorized to designate additional 
stormwater discharges to be regulated other than those already 
regulated, and to establish a comprehensive program to regulate them. 
In addition, under EPA's stormwater regulations, EPA (or States 
authorized to administer the NPDES program) may require NPDES permits

[[Page 68620]]

for currently unregulated stormwater discharges by designating 
discharges pursuant to 40 CFR 122.26(a)(9)(i)(C) or (D).

National Research Council Report

    In 2006, EPA asked the National Research Council (NRC) to conduct a 
review of its stormwater program, considering all entities regulated 
under the program, i.e., municipal, industrial and construction. In 
October 2008, the National Research Council released the report Urban 
Stormwater Management in the United States (The National Academies 
Press, 2009) finding, among other things, that ``the rapid conversion 
of land to urban and suburban areas has profoundly altered how water 
flows during and following storm events, putting higher volumes of 
water and more pollutants into the nation's rivers, lakes, and 
estuaries. These changes have degraded water quality and habitat in 
virtually every urban stream system.''
    This report recommends a number of actions, including conserving 
natural areas, reducing hard surface cover (e.g., roads and parking 
lots--impervious surface areas), and retrofitting urban areas with 
features that hold and treat stormwater (NRC, Report in Brief, 2008). 
EPA takes seriously the significant findings and recommendations 
included in the NRC Report, and continues to evaluate how the Agency's 
stormwater program can be strengthened in light of the report. The 
Report in Brief can be accessed at: http://dels.nas.edu/dels/rpt_
briefs/stormwater_discharge_final.pdf. A full copy of the report can 
be obtained from The National Academies Press, http://books.nap.edu/
catalog.php?record_id=12465. A prepublication copy is available at: 
http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf.
    EPA shares the NRC Committee's perspective that it is imperative 
that the stormwater regulations be as effective as possible in 
protecting water quality. The NRC Report has provided EPA with the 
opportunity to reexamine the effectiveness of its stormwater programs, 
some of which are nearly 20 years old. For instance, EPA is interested 
in assessing the level of accountability that the regulations and the 
permits issued under the regulations provide to MS4s to minimize the 
discharge of pollutants in stormwater. The role of MS4s in reducing 
stormwater impacts from the built environment is crucial and growing, 
given that these sources of adverse water quality impacts are 
continually expanding. As the urban, suburban and exurban human 
environment expands, there is an increase in impervious land cover and 
therefore an increase in stormwater discharges. This increase in 
impervious land cover reduces or eliminates the natural infiltration of 
precipitation, which greatly increases the volume of stormwater 
discharges. This increased volume of stormwater discharges results in 
the scouring of rivers and streams; degrading the physical integrity of 
aquatic habitats, stream function and overall water quality. In 
addition, the increase in impervious land cover results in the increase 
of the pollutant load discharged from storm sewers. As precipitation 
moves across roads, rooftops, and other impervious surfaces, it picks 
up pollutants that are then discharged, either directly or through 
storm sewers, to our Nation's waters.
    To address the degradation of water quality caused by stormwater 
discharges from impervious cover, EPA is exploring regulatory options 
that would strengthen the stormwater program, including establishing 
specific post construction requirements for stormwater discharges from, 
at a minimum, new development and redevelopment. EPA does not currently 
regulate stormwater discharges from new development and redevelopment 
directly. However, both Phase I MS4s and Phase II MS4s are required 
through the MS4 permit to address stormwater discharges from new 
development and redevelopment in their SWMPs, but the regulations do 
not include specific management practices or standards to be 
implemented. Among the Phase I requirements for a SWMP is a 
``comprehensive master plan to develop, implement, and enforce controls 
to reduce the discharge of pollutants from municipal storm sewers, 
which receive discharges from areas of new development and significant 
redevelopment. Such plan shall address controls to reduce pollutants in 
discharges from municipal separate storm sewers after construction is 
completed.'' (40 CFR 122.26(d)(2)(iv)(A)(2)).
    Phase II regulations include post construction requirements as one 
of the six minimum control measures to be addressed in the SWMP. Small 
MS4s must ``develop, implement, and enforce a program to address'' 
stormwater discharges from new development and redevelopment projects 
of one acre or greater to ``ensure that controls are in place that 
would prevent or minimize water quality impacts.'' 40 CFR 122.34(b)(5). 
The program must include strategies including structural and/or non-
structural best management practices (BMPs) appropriate for the 
community; use of ordinances or other regulatory mechanisms to the 
extent allowable under State, Tribal or local law; and measures to 
ensure adequate long-term operation and maintenance of BMPs. The Phase 
II rule recommends (but does not require) that the program to address 
stormwater from new development and redevelopment should attempt to 
maintain pre-development runoff conditions by installing and 
implementing stormwater control measures.
    As stated in the report, the NRC found that ``stormwater permits 
leave a great deal of discretion to the regulated community to set 
their own standards and to self-monitor.'' As a result, across the 
Nation there is inconsistency in the NPDES program and in stormwater 
management programs required by NPDES permit with respect to stormwater 
discharges from MS4s caused by stormwater discharges from development. 
Despite the lack of specificity in the current regulations, some 
permitting authorities have required controls for stormwater discharges 
from developed property that neutralize the impacts from stormwater by 
promoting practices that retain stormwater on-site through 
infiltration, evapotranspiration, or stormwater reuse. To help make 
permitting more consistent and robust nationally, EPA is considering 
ways to strengthen the MS4 permit regulations, including establishing 
specific requirements for stormwater discharges from, at a minimum, new 
development and redevelopment; expanding the area defined as MS4s to 
include rapidly developing areas; and devising a single set of 
consistent regulations for all MS4s. In addition, EPA is exploring 
regulatory options to directly address stormwater discharges from new 
development and redevelopment, including new and redeveloped sites 
outside the MS4 boundary, that may be contributing to waterbody 
impairment, through the designation of an additional category or 
categories of discharges under CWA section 402(p)(6).

Proposed Information Collection Request (ICR)

    EPA has proposed an Information Collection Request (ICR) to collect 
data to support this effort to strengthen the stormwater regulations 
(published October 30, 2009, 74 FR 56191). The proposed ICR discusses 
the administration of three questionnaires: The first for the owners, 
operators, developers, and contractors of new development and 
redevelopment; the second for the owners and operators of MS4s 
(including those not federally

[[Page 68621]]

regulated); and the third for the States and territories. The data 
collected through this ICR would support EPA's rulemaking activities by 
providing EPA with information to characterize the current level of 
stormwater controls and stormwater control measures; the area currently 
covered by federal and state stormwater requirements; the current 
burden and expenditures by States and MS4s associated with existing 
requirements; and technical, financial, and environmental data needed 
to quantify the incremental pollutant removals, compliance costs, and 
impacts for various regulatory options that EPA might consider. Under 
the proposed ICR, EPA seeks any available information concerning 
current stormwater control practices, including those referred to as 
green infrastructure or low-impact development. For further 
information, see: http://www.epa.gov/npdes/stormwater/rulemaking.

III. Input on Stormwater Practices and Considerations for Modifying 
Regulations

    Today's notice is being issued to make the public aware of 
opportunities to provide input on current stormwater practices and to 
inform the public of and solicit comment on EPA's preliminary 
considerations for modifying or supplementing EPA's stormwater 
regulations. EPA is accepting information during the listening sessions 
and/or by submission of written comments in order to gain early public 
input on stormwater practices and regulations.

A. Solicitation for Additional Input Regarding Stormwater Control 
Practices

    1. In addition to the information collection request described 
above, EPA is soliciting comment and input from the general public 
concerning current stormwater control practices, as well as information 
concerning innovative approaches to stormwater control. In particular, 
EPA is seeking information on the following aspects of structural 
approaches to stormwater control: design, performance, operation and 
maintenance, capital and lifetime cost, and environmental and economic 
benefit information on practices that retain stormwater on-site through 
infiltration, evapotranspiration, or stormwater reuse. EPA solicits 
comment and input on these retention practices that have been used for 
``green field'' development, redevelopment (where there was some pre-
existing infrastructure), and retrofitting existing development. While 
a significant amount of data has been collected and is available (see, 
EPA's Urban BMP Performance Tool (http://www.epa.gov/npdes/stormwater/
urbanbmp) or the International Stormwater BMP Database (http://
www.bmpdatabase.org)), EPA is accepting any more recent information 
that is not already available in these databases.
    2. Cost comparisons of different stormwater management approaches 
for specific sites. EPA solicits comment and input on different 
stormwater management approaches, including comparison of stormwater 
management systems that rely primarily on conveyance and detention of 
excess discharge with stormwater management systems that relies 
primarily on on-site retention. Cost comparisons should preferably be 
between similar sized projects and/or between individual management 
methods of similar scope and capability.
    3. Design, performance, operation and maintenance, capital and 
lifetime costs, and environmental and economic benefit information for 
communities and/or site owners or operators that have elected to modify 
or retrofit their stormwater management practices for existing 
development, as a separate effort that is not in conjunction with 
redevelopment. This may occur if the existing stormwater management 
practices were insufficient to reduce pollutants, restore habitat and 
stabilize stream morphology, or to correct past mistakes. This may also 
occur as part of a larger watershed restoration plan. EPA is also 
soliciting comments and input on: where retrofit practices have been 
installed, what the drivers were for the project, and information on 
the specific retrofit practices that were installed.
    4. EPA is also soliciting comments and input on monitoring 
information that may have been collected to show the impacts of 
stormwater control measures on water quality and/or flow rates in the 
receiving waterbody. This includes information on the effects of 
retrofits for existing discharges (before and after installation, if 
possible), as well as any water monitoring information obtained before 
and after new development and redevelopment.

B. Preliminary Considerations for Modifying/Supplementing EPA's 
Stormwater Regulations

    By today's notice, EPA is informing the public of its preliminary 
considerations for modifying or supplementing EPA's stormwater 
regulations and soliciting public input on these considerations. The 
following are ideas that EPA is considering for strengthening the 
stormwater requirements and for which EPA seeks input:
    1. Expand the area subject to federal stormwater regulations. EPA 
currently requires MS4s within Census-designated urbanized areas to 
apply for permit coverage (see http://www.epa.gov/npdes/stormwater/
urbanmaps for maps of all urbanized areas). Based on the 1990 Census, 
there are 405 urbanized areas in the United States that cover 2% of 
total U.S. land area and contain approximately 63 percent of the 
Nation's population. Under the present regulations, development that is 
occurring outside currently regulated MS4s may not be subject to 
federal controls to protect water quality notwithstanding the fact that 
the resulting stormwater discharges may be contributing to waterbody 
impairment. For example, for Phase II MS4s, only the portion of the 
municipal jurisdiction (i.e. township) that is within the Census-
designated urbanized area is required to be regulated, which may leave 
stormwater discharges in parts of the jurisdiction unregulated.
    EPA solicits comments and input from the public on the need for 
expanding the area subject to federal regulation, and, if needed, how 
to expand the coverage of the federal stormwater program beyond the 
Census urbanized area boundary. EPA would be interested in views on (1) 
How to identify the appropriate jurisdictional boundaries for permit 
coverage, including the township, county, sewer district, or others; 
(2) how to identify areas that should be covered based on development 
pressures and to protect water quality; and (3) whether EPA should 
consider regulating stormwater discharges from particular types or 
sizes of development that are not covered by an MS4 permit.
    2. Establish specific requirements to control stormwater discharges 
from new development and redevelopment. EPA is considering establishing 
specific requirements, including standards, to control stormwater 
discharges from new development and redevelopment. EPA welcomes 
comments on what standard or standards could apply to new development 
and redevelopment that promote sustainable practices that mimic natural 
processes to (1) Infiltrate and recharge, (2) evapotranspire, and/or 
(3) harvest and reuse precipitation. For example, there could be a 
national requirement for on-site stormwater controls such that post 
development hydrology mimics predevelopment hydrology on a site-
specific basis. EPA could establish a suite of specific options of 
standards for meeting such a requirement, for example, on-site 
retention of a specific size storm event in an area, limits on the 
amount of

[[Page 68622]]

effective impervious surfaces (defined as impervious surfaces with 
direct hydraulic connection to the downstream drainage (or stream) 
system, also referred to as directly connected impervious area), use of 
site-specific calculations to determine predevelopment hydrology, and/
or use of regional specific standards to reflect local circumstances. 
EPA could require these standards as part of the MS4 permit on a site-
specific basis. EPA is interested in input regarding the need for and 
the type of standards to set. Should the standard be different for 
discharges from new development versus redevelopment and, if so, how 
should it differ? Are there specific circumstances in which (for 
example) a requirement for new development and redevelopment to 
maintain pre-development hydrology would not be advisable or would 
cause other environmental impacts? Finally, EPA is interested in input 
regarding responsibility for maintaining stormwater control measures 
that infiltrate, evapotranspirate and/or reuse water.
    The impacts from stormwater discharges from new and redevelopment 
occur not only within the MS4 but also from sources outside the MS4 
regulated areas. EPA is interested in input regarding the appropriate 
framework for implementing standards for new and redevelopment outside 
of the MS4 regulations.
    3. Develop a single set of consistent requirements for Phase I and 
Phase II MS4s. EPA's Phase I regulations primarily contain application 
requirements that identify components that must be addressed in permit 
applications. The Phase II regulations establish six ``minimum 
measures'' that must be included in an MS4 permit that were more 
specific than Phase I. Many Phase I and Phase II permits address issues 
that are virtually identical. EPA requests input on whether EPA should 
modify the regulations to develop a consistent set of requirements that 
would apply to all regulated MS4s. For example, should EPA apply the 
six minimum measures to all MS4s? Should EPA add other measures? For 
instance, Phase I MS4s are required to implement a program to control 
discharges for industrial facilities in their service area. Should this 
requirement be extended to all MS4s? EPA also requests input on any 
other modifications to improve the stormwater regulations.
    4. Require MS4s to address stormwater discharges in areas of 
existing development through retrofitting of the sewer system, drainage 
area, or individual structures with improved stormwater control 
measures. Stormwater discharge from large areas of impervious cover in 
developed areas is a significant contributor to water quality 
impairments in the receiving waters of urban areas. Changes to the 
stormwater management practices in areas of existing development will 
reduce these impacts. In some states, MS4 permits now require the MS4 
to install retrofit practices that infiltrate or otherwise retain 
stormwater in areas of existing development to reduce these impacts. 
EPA requests input on whether it should consider requirements for the 
retrofit of existing development to address stormwater. In particular, 
EPA requests comment on requiring MS4s to develop a long-term retrofit 
implementation plan that is targeted to addressing stormwater problems 
in urban waters.
    5. Whether EPA should include additional changes to the stormwater 
regulations (for example, requiring permits to include buffer 
requirements) in sensitive areas. EPA is interested in views on whether 
it should consider making any other changes to the current regulatory 
program (e.g., specific structural or nonstructural stormwater control 
measures) in addition to the ones described above to protect 
waterbodies in sensitive areas.

    Dated: December 17, 2009.
Peter Silva,
Assistant Administrator, Office of Water.
[FR Doc. E9-30627 Filed 12-24-09; 8:45 am]

BILLING CODE 6560-50-P
