SUPPLEMENTARY INFORMATION:

EPA is proposing to reissue three draft NPDES general permits for the discharge of stormwater from small MS4s to certain waters within the commonwealth of Massachusetts. The three permits are:

MAR041000—Traditional cities and towns

MAR042000—Non-traditional state, federal, county and other publicly owned systems

MAR043000—Non-traditional transportation systems

For convenience, EPA grouped these three distinct permits together in a single document (referred to as the draft “permit” in singular) and have provided ( printed page 92684) a single fact sheet for all three. The Draft GP, appendices, and fact sheet are available at: https://www.epa.gov/​npdes-permits/​massachusetts-small-ms4-general-permit.

The conditions in the Draft GP are established pursuant to Clean Water Act (CWA) section 402(p)(3)(B)(iii) to ensure that pollutant discharges from small MS4s are reduced to the Maximum Extent Practicable (MEP), protect water quality, and satisfy the appropriate requirements of the CWA. The Draft GP applies to small municipal separate storm sewer systems in Massachusetts as defined in the regulations at 40 CFR 122.26(b)(16). When final, the Draft GP will replace the Final Massachusetts MS4 GP issued on April 4, 2016 and modified on December 7, 2020. This Draft GP carries forward and builds on the requirements of EPA's previous MA small MS4 general permits.

The non-numeric conditions and limits for stormwater discharges authorized under the Draft GP are in the form of best management practices (BMPs). The regulations at 40 CFR 122.44(k)(2) provide that permits may include BMPs to control or abate the discharge of pollutants when authorized under section 402(p) of the CWA for control of stormwater discharges. Due to the variability associated with stormwater, EPA believes the use of BMPs is currently the most appropriate method to regulate discharges of stormwater from municipal systems.

The Draft GP establishes requirements for small MS4s to “reduce the discharge of pollutants to the maximum extent practicable (MEP), including management practices, control techniques, and system, design and engineering methods” Section 402(p)(3)(B)(iii) of the CWA. The Draft GP requires small MS4s to update and continue to implement a comprehensive stormwater management program (SWMP) to reduce the discharge of pollutants. Part 2.3 of the Draft GP requires small MS4s to implement a SWMP that includes the following minimum control measures: public education and outreach; public participation; illicit discharge detection and elimination; construction stormwater management; stormwater management in new development and redevelopment; and good housekeeping in municipal operations. EPA views the MEP standard in the CWA as an iterative process and, as such, requirements should continually adapt to current conditions and BMP effectiveness. Accordingly, the Draft GP advances the MEP requirements of the 2016 MA MS4 Permit, particularly with respect to implementation of green infrastructure and low impact design elements.

Section 402(p)(3)(B)(iii) of CWA authorizes EPA to include in an MS4 permit “such other provisions as [EPA] determine[s] appropriate for control of . . . pollutants.” Parts 2.1 and 2.2 of the Draft GP carry forward water quality-based effluent limitations from the 2016 MA MS4 Permit to ensure that discharges do not cause or contribute to exceedances of water quality standards. The provisions, expressed in the form of additional control measures beyond the minimum control measures in the Part 2.3 of the Draft GP, apply specifically to stormwater discharges to impaired waterbodies with and without an EPA-approved total maximum daily load (TMDL). The Draft GP extends these requirements to additional waterbodies for which EPA approved a TMDL or Alternative Restoration Plan since the issuance of the 2016 MA MS4 Permit.

Other Legal Requirements: Endangered Species Act (ESA): The Draft GP does not authorize stormwater discharges which adversely affect any species listed as threatened or endangered under the ESA or which result in the adverse modification or destruction of designated critical habitat. EPA has updated the provisions related to the ESA. Concurrently with the public notice of the Draft GP, EPA is requesting concurrence with the National Oceanic and Atmospheric Administration, National Marine Fisheries Service (NOAA Fisheries) and the United States Fish and Wildlife Service with EPA's preliminary finding based on the results of EPA's assessment of the potential effects to endangered and threatened species and their critical habitats as a result of the issuance of the Draft MS4 GP.

Essential Fish Habitat (EFH): In accordance with the 1996 Amendments (Pub. L. 104-267) to the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. (1998)), the Draft GP does not authorize stormwater discharges whose direct or indirect impacts do not prevent or minimize adverse effects on any EFH. EPA determined that the permit action will not adversely affect the EFH of designated species. 16 U.S.C. 1855(b). Additional mitigation is not warranted under section 305(b)(2) of the Magnuson-Stevens Act. EPA is providing this determination to NOAA Fisheries for their review concurrent with the public notice of the Draft GP.

National Historic Preservation Act (NHPA): The Draft GP does not authorize stormwater discharges which adversely affect properties listed or eligible for listing in the National Registry of Historic Places under the NHPA. Concurrently with the public notice of the Draft GP, EPA will initiate consultation under the NHPA related to the stormwater management activities under the Draft GP.

Coastal Zone Management Act (CZMA): The CZMA, 16 U.S.C. 1451 et seq., and its implementing regulations (15 CFR part 930) require a determination that any federally licensed activity affecting the coastal zone with an approved Coastal Zone Management Program (CZMP) is consistent with the CZMA. Concurrent with the public notice of the Draft GP, EPA is requesting concurrence from the Massachusetts Coastal Program (MassCZM) with EPA's Federal consistency review.

Authority: This action is being taken under the Clean Water Act, 33 U.S.C. 1251 et seq.

89 FR 92683