[Code of Federal Regulations]

[Title 40, Volume 21]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR122.34]



[Page 203-208]

 

                   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.

    (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



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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 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



[[Page 205]]



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 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



[[Page 206]]



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 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



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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 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



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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]