[Code of Federal Regulations]
[Title 40, Volume 21]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR122.34]

[Page 202-207]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 122_EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM--Table of Contents
 
   Subpart B_Permit Application and Special NPDES Program Requirements
 
Sec. 122.34  As an operator of a regulated small MS4, what will my 
NPDES MS4 storm water permit require?

    (a) Your NPDES MS4 permit will require at a minimum that you 
develop, implement, and enforce a storm water management program 
designed to reduce the discharge of pollutants from your MS4 to the 
maximum extent practicable (MEP), to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. Your storm water management program must include the minimum 
control measures described in paragraph (b) of this section unless you 
apply for a permit under Sec. 122.26(d). For purposes of this section, 
narrative effluent limitations requiring implementation of best 
management practices (BMPs) are generally the most appropriate form of 
effluent limitations when designed to satisfy technology requirements 
(including reductions of pollutants to the maximum extent practicable) 
and to protect water quality. Implementation of best management 
practices consistent with the provisions of the storm water management 
program required pursuant to this section and the provisions of the 
permit required pursuant to Sec. 122.33 constitutes compliance with the 
standard of reducing pollutants to the ``maximum extent practicable.'' 
Your NPDES permitting authority will specify a time period of up to 5 
years from the date of permit issuance for you to develop and implement 
your program.
    (b) Minimum control measures--(1) Public education and outreach on 
storm water impacts. (i) You must implement a public education program 
to distribute educational materials to the community or conduct 
equivalent outreach activities about the impacts of storm water 
discharges on water bodies and the steps that the public can take to 
reduce pollutants in storm water runoff.

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    (ii) Guidance: You may use storm water educational materials 
provided by your State, Tribe, EPA, environmental, public interest or 
trade organizations, or other MS4s. The public education program should 
inform individuals and households about the steps they can take to 
reduce storm water pollution, such as ensuring proper septic system 
maintenance, ensuring the proper use and disposal of landscape and 
garden chemicals including fertilizers and pesticides, protecting and 
restoring riparian vegetation, and properly disposing of used motor oil 
or household hazardous wastes. EPA recommends that the program inform 
individuals and groups how to become involved in local stream and beach 
restoration activities as well as activities that are coordinated by 
youth service and conservation corps or other citizen groups. EPA 
recommends that the public education program be tailored, using a mix of 
locally appropriate strategies, to target specific audiences and 
communities. Examples of strategies include distributing brochures or 
fact sheets, sponsoring speaking engagements before community groups, 
providing public service announcements, implementing educational 
programs targeted at school age children, and conducting community-based 
projects such as storm drain stenciling, and watershed and beach 
cleanups. In addition, EPA recommends that some of the materials or 
outreach programs be directed toward targeted groups of commercial, 
industrial, and institutional entities likely to have significant storm 
water impacts. For example, providing information to restaurants on the 
impact of grease clogging storm drains and to garages on the impact of 
oil discharges. You are encouraged to tailor your outreach program to 
address the viewpoints and concerns of all communities, particularly 
minority and disadvantaged communities, as well as any special concerns 
relating to children.
    (2) Public involvement/participation. (i) You must, at a minimum, 
comply with State, Tribal and local public notice requirements when 
implementing a public involvement/ participation program.
    (ii) Guidance: EPA recommends that the public be included in 
developing, implementing, and reviewing your storm water management 
program and that the public participation process should make efforts to 
reach out and engage all economic and ethnic groups. Opportunities for 
members of the public to participate in program development and 
implementation include serving as citizen representatives on a local 
storm water management panel, attending public hearings, working as 
citizen volunteers to educate other individuals about the program, 
assisting in program coordination with other pre-existing programs, or 
participating in volunteer monitoring efforts. (Citizens should obtain 
approval where necessary for lawful access to monitoring sites.)
    (3) Illicit discharge detection and elimination. (i) You must 
develop, implement and enforce a program to detect and eliminate illicit 
discharges (as defined at Sec. 122.26(b)(2)) into your small MS4.
    (ii) You must:
    (A) Develop, if not already completed, a storm sewer system map, 
showing the location of all outfalls and the names and location of all 
waters of the United States that receive discharges from those outfalls;
    (B) To the extent allowable under State, Tribal or local law, 
effectively prohibit, through ordinance, or other regulatory mechanism, 
non-storm water discharges into your storm sewer system and implement 
appropriate enforcement procedures and actions;
    (C) Develop and implement a plan to detect and address non-storm 
water discharges, including illegal dumping, to your system; and
    (D) Inform public employees, businesses, and the general public of 
hazards associated with illegal discharges and improper disposal of 
waste.
    (iii) You need address the following categories of non-storm water 
discharges or flows (i.e., illicit discharges) only if you identify them 
as significant contributors of pollutants to your small MS4: water line 
flushing, landscape irrigation, diverted stream flows, rising ground 
waters, uncontaminated ground water infiltration (as defined at 40 CFR 
35.2005(20)), uncontaminated

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pumped ground water, discharges from potable water sources, foundation 
drains, air conditioning condensation, irrigation water, springs, water 
from crawl space pumps, footing drains, lawn watering, individual 
residential car washing, flows from riparian habitats and wetlands, 
dechlorinated swimming pool discharges, and street wash water 
(discharges or flows from fire fighting activities are excluded from the 
effective prohibition against non-storm water and need only be addressed 
where they are identified as significant sources of pollutants to waters 
of the United States).
    (iv) Guidance: EPA recommends that the plan to detect and address 
illicit discharges include the following four components: procedures for 
locating priority areas likely to have illicit discharges; procedures 
for tracing the source of an illicit discharge; procedures for removing 
the source of the discharge; and procedures for program evaluation and 
assessment. EPA recommends visually screening outfalls during dry 
weather and conducting field tests of selected pollutants as part of the 
procedures for locating priority areas. Illicit discharge education 
actions may include storm drain stenciling, a program to promote, 
publicize, and facilitate public reporting of illicit connections or 
discharges, and distribution of outreach materials.
    (4) Construction site storm water runoff control. (i) You must 
develop, implement, and enforce a program to reduce pollutants in any 
storm water runoff to your small MS4 from construction activities that 
result in a land disturbance of greater than or equal to one acre. 
Reduction of storm water discharges from construction activity 
disturbing less than one acre must be included in your program if that 
construction activity is part of a larger common plan of development or 
sale that would disturb one acre or more. If the NPDES permitting 
authority waives requirements for storm water discharges associated with 
small construction activity in accordance with Sec. 122.26(b)(15)(i), 
you are not required to develop, implement, and/or enforce a program to 
reduce pollutant discharges from such sites.
    (ii) Your program must include the development and implementation 
of, at a minimum:
    (A) An ordinance or other regulatory mechanism to require erosion 
and sediment controls, as well as sanctions to ensure compliance, to the 
extent allowable under State, Tribal, or local law;
    (B) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (C) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, chemicals, 
litter, and sanitary waste at the construction site that may cause 
adverse impacts to water quality;
    (D) Procedures for site plan review which incorporate consideration 
of potential water quality impacts;
    (E) Procedures for receipt and consideration of information 
submitted by the public, and
    (F) Procedures for site inspection and enforcement of control 
measures.
    (iii) Guidance: Examples of sanctions to ensure compliance include 
non-monetary penalties, fines, bonding requirements and/or permit 
denials for non-compliance. EPA recommends that procedures for site plan 
review include the review of individual pre-construction site plans to 
ensure consistency with local sediment and erosion control requirements. 
Procedures for site inspections and enforcement of control measures 
could include steps to identify priority sites for inspection and 
enforcement based on the nature of the construction activity, 
topography, and the characteristics of soils and receiving water 
quality. You are encouraged to provide appropriate educational and 
training measures for construction site operators. You may wish to 
require a storm water pollution prevention plan for construction sites 
within your jurisdiction that discharge into your system. See Sec. 
122.44(s) (NPDES permitting authorities' option to incorporate 
qualifying State, Tribal and local erosion and sediment control programs 
into NPDES permits for storm water discharges from construction sites). 
Also see Sec. 122.35(b) (The NPDES permitting authority may recognize 
that another government entity, including the

[[Page 205]]

permitting authority, may be responsible for implementing one or more of 
the minimum measures on your behalf.)
    (5) Post-construction storm water management in new development and 
redevelopment.
    (i) You must develop, implement, and enforce a program to address 
storm water runoff from new development and redevelopment projects that 
disturb greater than or equal to one acre, including projects less than 
one acre that are part of a larger common plan of development or sale, 
that discharge into your small MS4. Your program must ensure that 
controls are in place that would prevent or minimize water quality 
impacts.
    (ii) You must:
    (A) Develop and implement strategies which include a combination of 
structural and/or non-structural best management practices (BMPs) 
appropriate for your community;
    (B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to 
the extent allowable under State, Tribal or local law; and
    (C) Ensure adequate long-term operation and maintenance of BMPs.
    (iii) Guidance: If water quality impacts are considered from the 
beginning stages of a project, new development and potentially 
redevelopment provide more opportunities for water quality protection. 
EPA recommends that the BMPs chosen: be appropriate for the local 
community; minimize water quality impacts; and attempt to maintain pre-
development runoff conditions. In choosing appropriate BMPs, EPA 
encourages you to participate in locally-based watershed planning 
efforts which attempt to involve a diverse group of stakeholders 
including interested citizens. When developing a program that is 
consistent with this measure's intent, EPA recommends that you adopt a 
planning process that identifies the municipality's program goals (e.g., 
minimize water quality impacts resulting from post-construction runoff 
from new development and redevelopment), implementation strategies 
(e.g., adopt a combination of structural and/or non-structural BMPs), 
operation and maintenance policies and procedures, and enforcement 
procedures. In developing your program, you should consider assessing 
existing ordinances, policies, programs and studies that address storm 
water runoff quality. In addition to assessing these existing documents 
and programs, you should provide opportunities to the public to 
participate in the development of the program. Non-structural BMPs are 
preventative actions that involve management and source controls such 
as: policies and ordinances that provide requirements and standards to 
direct growth to identified areas, protect sensitive areas such as 
wetlands and riparian areas, maintain and/or increase open space 
(including a dedicated funding source for open space acquisition), 
provide buffers along sensitive water bodies, minimize impervious 
surfaces, and minimize disturbance of soils and vegetation; policies or 
ordinances that encourage infill development in higher density urban 
areas, and areas with existing infrastructure; education programs for 
developers and the public about project designs that minimize water 
quality impacts; and measures such as minimization of percent impervious 
area after development and minimization of directly connected impervious 
areas. Structural BMPs include: storage practices such as wet ponds and 
extended-detention outlet structures; filtration practices such as 
grassed swales, sand filters and filter strips; and infiltration 
practices such as infiltration basins and infiltration trenches. EPA 
recommends that you ensure the appropriate implementation of the 
structural BMPs by considering some or all of the following: pre-
construction review of BMP designs; inspections during construction to 
verify BMPs are built as designed; post-construction inspection and 
maintenance of BMPs; and penalty provisions for the noncompliance with 
design, construction or operation and maintenance. Storm water 
technologies are constantly being improved, and EPA recommends that your 
requirements be responsive to these changes, developments or 
improvements in control technologies.
    (6) Pollution prevention/good housekeeping for municipal operations. 
(i) You

[[Page 206]]

must develop and implement an operation and maintenance program that 
includes a training component and has the ultimate goal of preventing or 
reducing pollutant runoff from municipal operations. Using training 
materials that are available from EPA, your State, Tribe, or other 
organizations, your program must include employee training to prevent 
and reduce storm water pollution from activities such as park and open 
space maintenance, fleet and building maintenance, new construction and 
land disturbances, and storm water system maintenance.
    (ii) Guidance: EPA recommends that, at a minimum, you consider the 
following in developing your program: maintenance activities, 
maintenance schedules, and long-term inspection procedures for 
structural and non-structural storm water controls to reduce floatables 
and other pollutants discharged from your separate storm sewers; 
controls for reducing or eliminating the discharge of pollutants from 
streets, roads, highways, municipal parking lots, maintenance and 
storage yards, fleet or maintenance shops with outdoor storage areas, 
salt/sand storage locations and snow disposal areas operated by you, and 
waste transfer stations; procedures for properly disposing of waste 
removed from the separate storm sewers and areas listed above (such as 
dredge spoil, accumulated sediments, floatables, and other debris); and 
ways to ensure that new flood management projects assess the impacts on 
water quality and examine existing projects for incorporating additional 
water quality protection devices or practices. Operation and maintenance 
should be an integral component of all storm water management programs. 
This measure is intended to improve the efficiency of these programs and 
require new programs where necessary. Properly developed and implemented 
operation and maintenance programs reduce the risk of water quality 
problems.
    (c) If an existing qualifying local program requires you to 
implement one or more of the minimum control measures of paragraph (b) 
of this section, the NPDES permitting authority may include conditions 
in your NPDES permit that direct you to follow that qualifying program's 
requirements rather than the requirements of paragraph (b) of this 
section. A qualifying local program is a local, State or Tribal 
municipal storm water management program that imposes, at a minimum, the 
relevant requirements of paragraph (b) of this section.
    (d)(1) In your permit application (either a notice of intent for 
coverage under a general permit or an individual permit application), 
you must identify and submit to your NPDES permitting authority the 
following information:
    (i) The best management practices (BMPs) that you or another entity 
will implement for each of the storm water minimum control measures at 
paragraphs (b)(1) through (b)(6) of this section;
    (ii) The measurable goals for each of the BMPs including, as 
appropriate, the months and years in which you will undertake required 
actions, including interim milestones and the frequency of the action; 
and
    (iii) The person or persons responsible for implementing or 
coordinating your storm water management program.
    (2) If you obtain coverage under a general permit, you are not 
required to meet any measurable goal(s) identified in your notice of 
intent in order to demonstrate compliance with the minimum control 
measures in paragraphs (b)(3) through (b)(6) of this section unless, 
prior to submitting your NOI, EPA or your State or Tribe has provided or 
issued a menu of BMPs that addresses each such minimum measure. Even if 
no regulatory authority issues the menu of BMPs, however, you still must 
comply with other requirements of the general permit, including good 
faith implementation of BMPs designed to comply with the minimum 
measures.
    (3) Guidance: Either EPA or your State or Tribal permitting 
authority will provide a menu of BMPs. You may choose BMPs from the menu 
or select others that satisfy the minimum control measures.
    (e)(1) You must comply with any more stringent effluent limitations 
in your permit, including permit requirements that modify, or are in 
addition to, the minimum control measures

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based on an approved total maximum daily load (TMDL) or equivalent 
analysis. The permitting authority may include such more stringent 
limitations based on a TMDL or equivalent analysis that determines such 
limitations are needed to protect water quality.
    (2) Guidance: EPA strongly recommends that until the evaluation of 
the storm water program in Sec. 122.37, no additional requirements 
beyond the minimum control measures be imposed on regulated small MS4s 
without the agreement of the operator of the affected small MS4, except 
where an approved TMDL or equivalent analysis provides adequate 
information to develop more specific measures to protect water quality.
    (f) You must comply with other applicable NPDES permit requirements, 
standards and conditions established in the individual or general 
permit, developed consistent with the provisions of Sec. Sec. 122.41 
through 122.49, as appropriate.
    (g) Evaluation and assessment--(1) Evaluation. You must evaluate 
program compliance, the appropriateness of your identified best 
management practices, and progress towards achieving your identified 
measurable goals.

    Note to paragraph (g)(1): The NPDES permitting authority may 
determine monitoring requirements for you in accordance with State/
Tribal monitoring plans appropriate to your watershed. Participation in 
a group monitoring program is encouraged.

    (2) Recordkeeping. You must keep records required by the NPDES 
permit for at least 3 years. You must submit your records to the NPDES 
permitting authority only when specifically asked to do so. You must 
make your records, including a description of your storm water 
management program, available to the public at reasonable times during 
regular business hours (see Sec. 122.7 for confidentiality provision). 
(You may assess a reasonable charge for copying. You may require a 
member of the public to provide advance notice.)
    (3) Reporting. Unless you are relying on another entity to satisfy 
your NPDES permit obligations under Sec. 122.35(a), you must submit 
annual reports to the NPDES permitting authority for your first permit 
term. For subsequent permit terms, you must submit reports in year two 
and four unless the NPDES permitting authority requires more frequent 
reports. Your report must include:
    (i) The status of compliance with permit conditions, an assessment 
of the appropriateness of your identified best management practices and 
progress towards achieving your identified measurable goals for each of 
the minimum control measures;
    (ii) Results of information collected and analyzed, including 
monitoring data, if any, during the reporting period;
    (iii) A summary of the storm water activities you plan to undertake 
during the next reporting cycle;
    (iv) A change in any identified best management practices or 
measurable goals for any of the minimum control measures; and
    (v) Notice that you are relying on another governmental entity to 
satisfy some of your permit obligations (if applicable).

[64 FR 68843, Dec. 8, 1999]