AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The U.S. Environmental Protection Agency (EPA) is updating specific data elements within the National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule (NPDES eRule), published on October 22, 2015, that apply to regulated municipal separate storm sewer systems (MS4s). These changes are necessary given the promulgation of a separate rulemaking after publication of the NPDES eRule that modified the NPDES permit requirements for small MS4s. That rule, referred to as the MS4 General Permit Remand Rule, published on December 9, 2016, made a number of the MS4-related data elements in the NPDES eRule no longer accurate. This final rule updates those data elements to be consistent with the current MS4 regulations, corrects related typographical errors, and makes other selected clarifications at the request of state NPDES permitting programs.

DATES:

This final rule is effective on May 15, 2020.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2018-0293. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Greg Schaner, Office of Wastewater Management, Water Permits Division (4203M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-0721; email address: schaner.greg@epa.gov. Refer also to the EPA's website for further information related to this final rule.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities potentially regulated by this final action include:

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 lists the types of entities that the EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table 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 122.26 and 122.32, 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 the Agency taking?

The EPA is finalizing a set of changes to the NPDES eRule that updates the data elements that apply to regulated MS4s. These changes are necessary because of a separate rulemaking that the EPA promulgated after publication of the NPDES eRule. That rulemaking, published on December 9, 2016, and referred to as the MS4 General Permit Remand Rule (MS4 Remand Rule), modified the NPDES permit requirements for small MS4s contained within the Phase II stormwater regulations. Promulgation of these Phase II regulatory changes made a number of the MS4-related data elements in the NPDES eRule no longer accurate. This final rule updates those specific data elements to make them consistent with current stormwater Phase II regulations, corrects related typographical errors, and clarifies some other data elements at the request of state NPDES permitting authorities. The changes are limited to the correction of inaccuracies and the addition of requested clarifications, and do not increase reporting burden on regulated MS4 permittees.

C. What is the Agency's authority for taking this action?

This final rule modifies the NPDES eRule; therefore, the authorities for this action are derivative of the authorities for that action. The EPA promulgated the NPDES eRule on October 22, 2015 (80 FR 64064), pursuant to the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., which added a new part to title 40 of the Code of Federal Regulations (CFR) (40 CFR part 127) and made changes to existing regulations. The EPA promulgated the NPDES eRule under authority of the CWA sections 101(f), 304(i), 308, 402, and 501.

These updates to the NPDES eRule are necessary because the EPA promulgated subsequent modifications to the Phase II stormwater permitting regulations for small MS4s, known as the MS4 Remand Rule. The authority for that rule is the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., including sections 402 and 501. The MS4 Remand Rule was published on December 9, 2016 (81 FR 89320) and was incorporated into the CFR at 40 CFR 122.28(d), and as modifications to 40 CFR 122.33 through 122.35.

D. What are the incremental costs and benefits of this action?

These regulatory updates do not increase the regulatory burden associated with complying with the NPDES eRule, but rather correct inconsistencies between the language used in the data elements and the newly modified Phase II stormwater regulations, and make several clarifications suggested by state NPDES permitting authorities. The EPA anticipates no change in the overall cost burden to affected entities to comply with the NPDES eRule above what was projected as a result of promulgating the rule.

III. Background

Under the NPDES eRule (promulgated on October 22, 2015, see 80 FR 64064), NPDES permitting authorities and permittees must replace the paper-based system of reporting permit information and data with an electronic system. The rule also lists specific data elements that must be reported in the EPA's national NPDES data system, the Integrated Compliance Information System (ICIS)-NPDES. See 40 CFR part 127, appendix A. Permitting authorities and permittees are currently required to begin reporting electronically for permitted MS4s on December 21, 2020. (Note, however, that in a separate action, the EPA published a proposed rule on February 28, 2020 to change to this deadline from December 21, 2020 to December 21, 2023. See 85 FR 11909.)

Following the issuance of the NPDES eRule, the EPA promulgated changes to certain Phase II stormwater permitting requirements related to small MS4s. This rulemaking, referred to as the MS4 General Permit Remand Rule (MS4 Remand Rule), was published on December 9, 2016 (see 81 FR 89320), and became effective as of January 9, 2017. The Phase II rule changes address a decision by the U.S. Court of Appeals for the Ninth Circuit in Environmental Defense Center, et al. v. EPA, 344 F.3d 832 (9th Cir. 2003) (EDC decision). That court found that the EPA's regulations for obtaining coverage under a small MS4 general permit did not provide for adequate public notice, the opportunity to request a hearing, or permitting authority review to determine whether the best management practices (BMPs) selected by each MS4 in its stormwater management program (SWMP) meet the CWA requirements, including the requirement at CWA section 402(p)(3)(B)(iii) to “reduce the discharge of pollutants to the maximum extent practicable.” The Phase II rule changes addressed these issues by revising the procedures to be used to issue and administer small MS4 general permits, and by making it clear that the terms and conditions of the permit are enforceable, not the contents of the permittee-developed SWMP.

Because the description of the MS4-related data elements in appendix A of the NPDES eRule were based on the regulations in place prior to issuance of the MS4 Remand Rule, it is necessary to update the NPDES eRule to reflect these changes. If left unchanged, the eRule data elements would be inconsistent with the new requirements for small MS4 permits in the Phase II regulations. The EPA is taking this action now to ensure that such inconsistencies are fixed, and to correct a small number of typographical errors and other mistakes made in relevant parts of the appendix A data elements.

The EPA is also clarifying the MS4-related data elements to address suggestions by authorized NPDES programs that participated in the EPA-State Stormwater Technical Workgroup (Workgroup). The EPA convened the Workgroup to discuss the MS4 data elements listed in appendix A to 40 CFR part 127. This Workgroup met bi-weekly from November 2017 to July 2018 and included approximately 100 subject matter experts from the EPA Headquarters, seven EPA Regions, and 34 states. The EPA documented member recommendations in a memorandum entitled Implementation Technical Paper No. 9: Data Requirements for NPDES Electronic Reporting Rule Stormwater Information (EPA, October 2018), posted on the EPA's website at https://www.epa.gov/​compliance/​data-entry-guidance-and-technical-papers. This technical paper provides more detail on electronic formatting and submission of data elements required through authorized NPDES program inspections and oversight, MS4 program compliance monitoring reports, NPDES permit applications, and NPDES general permit reports [e.g., Notices of Intent (NOIs)]. The EPA plans to use this technical paper to develop electronic reporting tools and to update NPDES data sharing protocols and schemas, the EPA's NPDES data system (ICIS-NPDES), and the forthcoming NPDES Noncompliance Report (NNCR).

In a separate action, the EPA plans to propose changing the deadline for implementation of Phase 2 of the NPDES eRule from December 21, 2020, to December 21, 2023 (see § 127.16 Table 1). Phase 2 implementation includes general permits and program reports. The EPA also plans to propose new provisions to allow the EPA to approve alternative start dates for electronic reporting and data sharing of Phase 2 data.

IV. Response to Public Comment on the Proposed Rule

The EPA received one comment during the public comment period that suggested one edit and further clarifications related to the proposed updates to the data elements. The EPA made the requested change to the data elements and provided further clarification on the Agency's intentions regarding several of the proposed data elements. To view the EPA's specific responses to these comments, refer to the Response-to-Comment document, which can be found in the docket for this final rule.

V. Types of Changes To Correct Inconsistencies Between the NPDES eRule Data Elements and Small MS4 Permit Regulations

The changes needed to eliminate the inconsistencies between the NPDES eRule data elements and the post-MS4 Remand Rule regulations are limited, and because these inconsistencies were repeated frequently, they fall into several broad categories. The following describes the broad categories of inconsistencies that existed previously and the types of changes made in this final rule.

A. Clarifications Concerning the Proper Role of the NPDES Permit as the Correct Source of the MS4's Requirements

The MS4 Remand Rule modified the Phase II stormwater regulations by, among other things, clarifying that it is the permit that establishes the enforceable requirements for the MS4. By establishing procedures for the permitting authority to ensure that the permit contains all of the requirements to assess compliance, the MS4 Remand Rule also clarified that these requirements are not found in documents such as the MS4's Notice of Intent for coverage or its SWMP, unless the SWMP, or portions of it, has been formally incorporated as part of the permit following a review, approval, and public notice process. See related discussion in the MS4 Remand Rule preamble at 81 FR 89339 (December 9, 2016).

The MS4 data elements in Table 2 of the NPDES eRule's appendix A data elements were based on the pre-MS4 Remand Rule version of the Phase II regulations. Therefore, some of the language used for the original NPDES eRule data elements does not accurately reflect that the permit terms alone constitute the enforceable requirements of the permit. In order to ensure that reported information related to MS4s accurately reflects the regulations upon which they are based, the EPA clarifies the descriptions of the data elements where necessary to ensure that the requirements that are reported and tracked through electronic reporting are the terms and conditions of the permit.

The following is a summary of the changes that the EPA is making in order to correct the inconsistencies described above.

• Corrections to data elements that referenced the permittee's intentions as opposed to the permit requirements. Language in the previous appendix A data elements that described the permittee's intentions in implementing the “minimum control measure” components of its stormwater program were not consistent with the current Phase II regulations. For instance, the previous appendix A data element description for the public education and outreach minimum control measure was described as “The one or more unique codes/descriptions that identifies educational materials the permittee intends to distribute or equivalent outreach activities . . .” (emphasis added). Use of this data description made sense under the pre-MS4 Remand Rule regulations, where the MS4's compliance obligation was contained within the permittee's SWMP, the contents of which were also required to be summarized in the MS4's NOI, if the permitting authority elected to issue a general permit for eligible small MS4s.

The MS4 Remand Rule clarified, among other things, that the MS4's description of its compliance actions does not substitute for the terms and conditions in the permit. The revised Phase II regulations make it clear that the permittee's compliance is judged by whether it has met the requirements of the permit; the permittee's intention as reflected in its SWMP does not constitute the basis for permit compliance. Though, in the example above, this language accurately reflected existing regulatory requirements for the public education and outreach minimum control measure prior to the MS4 Remand Rule, its emphasis on the intention of the permittee, rather than the permit requirements, was inconsistent with the revised Phase II regulations.

The EPA's rule modifies the relevant language for each of the data elements that included this type of language to reflect that the permit establishes the enforceable requirements, not the SWMP or NOI. Using the public education and outreach example again, this final rule revises the data element description to read as follows: “The one or more unique codes/descriptions that identifies the permit elements associated with the public education and outreach program requirements . . .” This modification clarifies that it is the specific “permit elements” related to the public education and outreach program that the regulations require the MS4 to report to the EPA. Another related, yet minor, change modifies the corresponding “Data Name” to reflect that it is not the details within the SWMP that define the permittee's compliance responsibilities. Therefore, instead of using “MS4 Public Education Program” as the data name, the name now refers to “Public Education and Outreach Permit Requirements.” These same changes are made to the data elements for the other five minimum control measures.

• Corrections to data elements that referred to the MS4's “measurable goals” as opposed to its permit requirements. Several of the data elements previously referred to the permittee's “measurable goals,” which is language that is no longer current after the EPA modified the Phase II regulations. Under the original Phase II regulations, small MS4s were required to submit information describing the “specific actions taken by the permittee to implement each BMP and the frequency and the dates for such actions.” See 64 FR 68763 (December 8, 1999). The submitted measurable goals were then used as the basis for the permittee's enforceable requirements, and the permittee was required to evaluate and submit annual reports on the progress made with respect to meeting these measurable goals. References to the MS4's measurable goals were largely removed from the Phase II regulations as part of the MS4 Remand Rule to more clearly convey that the terms and conditions in the relevant permit are enforceable, not the permittee's proposed measurable goals.

The EPA's final rule removes references in the previous MS4 data elements to measurable goals and replaces them with language that refers to the “specific schedules or deadlines” for complying with the relevant requirements of the permit. Another related, yet minor, change modifies the corresponding “Data Name” to remove language that made reference to measurable goals and substitutes it with the permit's relevant “deadlines.”

• Updates to the data element(s) associated with permit requirements established in addition to the minimum control measure requirements. The final rule also updates the language used to describe MS4 terms and conditions that are included in the permit to address the modified Phase II regulatory language at 40 CFR 122.34(c) related to “other applicable NPDES requirements.” These changes include updates to the language used for the “Data Name” and “Data Description.” The final rule also corrects an error by adding a data element that was omitted from the previous Table 2 related to the deadlines associated with “other applicable permit requirements.”
• Additional clarifications to accurately characterize the source of data on permit requirements. The final rule suggests a few additional changes to clarify that the source of data on an MS4's permit requirements is the permit itself, not the permit application or NOI. For instance, the previous title for one of the Table 2 sections for MS4 data elements was “Municipal Separate Storm Sewer System (MS4) Information on NPDES Permit Application or Notice of Intent.” In order to clarify that the terms and conditions that the MS4 is responsible for meeting are found in the permit, the EPA modifies this title as follows: “Municipal Separate Storm Sewer System (MS4) Information in NPDES Permit.”

B. Other Conforming Changes To Ensure Consistency With the Current Phase II Regulations

• Removing data element made unnecessary or obsolete by the modified Phase II regulations. One of the previous data elements required information from permittees that is no longer required under the revised Phase II regulations. The data element titled MS4 Permit Components Descriptions and Measurable Goals is now deleted from Table 2 of appendix A in the section entitled “Compliance Monitoring Activity Information (Data Elements Specific to Municipal Storm Sewer System Program Reports).” The previous data element requested information on “all of the permitted components and measurable goals that are included in the MS4 permit.” This data element was redundant of the data element that in the final rule is now titled “Municipal Separate Storm Sewer System (MS4) Information in NPDES Permit,” and for that reason has been removed.
• Changes to conform data elements to current Phase II reporting requirements. The following are changes made to data elements to reflect the current Phase II reporting requirements for small MS4s under 40 CFR 122.34(d)(3). These data elements are all located in the section entitled “Compliance Monitoring Activity Information (Data Elements Specific to Municipal Storm Sewer System Program Reports).”

1. Status of Compliance with Each Minimum Control Measure. The final rule modifies this data element to reflect the changes made to the description of information required to be reported under 40 CFR 122.34(d)(3)(i). To reflect the fact that the Phase II regulations were changed to require the permittee to include in its report “[t]he status of compliance with permit terms and conditions,” conforming changes are made to the Data Name so that the revised Data Name is “Status of Compliance with MS4 Permit Requirements.” Similar changes are made to the Data Description to read as follows: “The unique codes/descriptions that identify if the permittee has complied with the MS4 permit requirements.”

2. Results of Information Collected and Analyzed. The previous data elements inadvertently omitted information required to be reported under 40 CFR 122.34(d)(3)(ii). This provision required small MS4 permittees to include in their annual reports “[r]esults of information collected and analyzed, including monitoring data, if any, during the reporting period.” The final rule corrects this omission by adding a new data element to capture this information.

3. Progress and Summary of Results with Each Minimum Control Measure. The final rule modifies this data element to reflect the changes made to the description of information required to be reported under 40 CFR 122.34(d)(3)(iii). To reflect the modified description of the information to be reported, namely “[a] summary of the storm water activities the permittee proposes to undertake to comply with the permit during the next reporting cycle,” conforming changes are made to the Data Name (i.e., it is changed to “Summary of Activities Undertaken to Comply with the MS4 Permit Requirements”) and to the Data Description (i.e., it is changed to “This is a text summary describing the stormwater activities undertaken by each permittee to comply with the MS4 permit requirements.”).

4. Changes to MS4 Permittee's Components and Measurable Goals. The final rule modifies this data element to reflect the changes made to the description of information required to be reported at 40 CFR 122.34(d)(3)(iv). To reflect the changes in the regulations that require the permittee to include in its report “[a]ny changes made during the reporting period to the permittee's storm water management program,” conforming changes are made to the Data Name (i.e., it is changed to “Summary of Activities Undertaken to Comply with the MS4 Permit Requirements”) and to the Data Description (i.e., it is changed to “The one or more codes/descriptions that describe . . . any changes made to the MS4 permittee's Stormwater Management Program (SWMP) during the reporting period.”).

• Clarification related to data provided for small MS4 permittees under a Two-Step General Permit approach. For permitting authorities that use a “Two-Step General Permit” under 40 CFR 122.28(d)(2) to provide permit coverage for small MS4s, there is flexibility regarding whether the permittee or the NPDES authority will be responsible for submitting data initially. NPDES authorities will likely choose to require the permittee to supply the initial information that characterizes what actions the MS4 proposes to take to address the permit requirements as a first step. Then, during the second step of the permitting process, the permitting authority will modify this information as necessary to reflect the final permit requirements. To allow or authorize this approach, the final rule includes the following text for many of the data elements in the “MS4 NPDES Permit-Related Information” section: “This data element includes proposed activities that are submitted by small MS4s seeking coverage under a 'Two-Step General Permit.' Following completion of the second permitting step, the authorized NPDES program will be responsible for sharing the final permit terms and conditions with U.S. EPA as required in subpart B of this part.”

Additionally, the EPA adds a note to the MS4 Permit-Related Information section of Table 2 that provides a basic explanation of how the Two-Step General Permit process is designed to work, and how the permit information for these types of permits is to be reported.

• Clarification related to data provided for Phase I MS4 permittees and Phase II small MS4 permittees under a Comprehensive General Permit approach. By comparison to the anticipated process that will be used by permitting authorities that issue Two-Step General Permits, where the permitting authority is issuing a Phase I individual permit or a Phase II comprehensive general permit, it is the EPA's expectation that the permitting authority will assume responsibility for providing the relevant information required by the data elements in appendix A, Table 2 related to “Municipal Separate Storm Sewer System (MS4) NPDES Permit-Related Requirements” (e.g., public education and outreach permit requirements, and associated deadlines). For both of these types of MS4 permits, the terms and conditions are established in the first instance as part of the final permit by the permitting authority; therefore, the permitting authority is in the best position to be able to provide accurate information required by the MS4 NPDES Permit-Related Requirements data elements.
• Updates to regulatory citations to reflect current Phase II regulations. The final rule updates a number of the existing MS4 regulatory citations in Table 2 of appendix A in order to reflect changes made to the Phase II regulations, and, in a few instances, to correct erroneous citations that were previously included in the table. For instance, the previous table references 40 CFR 122.28(b)(2)(ii) for the supporting authority for the data elements associated with each of the minimum control measures. Because the modified Phase II regulations now include a section addressing small MS4 general permits, this citation is updated to refer to the correct section (i.e., 40 CFR 122.28(d)). Elsewhere, the final rule adds references to 40 CFR 122.33(b) to more accurately reflect the current Phase II regulatory authority for requiring basic system information. The final rule also provides the updated reference to the correct annual reporting provision (i.e., 40 CFR 122.34(d)(3)). Other examples include the addition of updated citations for Phase I MS4s, such as an updated citation to 40 CFR 122.26(d)(2)(iv)(A)(6), (d)(2)(iv)(B)(5), and (d)(2)(iv)(D)(4) to support the use of the data element for “Deadlines Associated with Public Education and Outreach Permit Requirements” for Phase I MS4s.
• Corrections to previous description of the frequency of required small MS4 reporting. The previous Table 1 imprecisely noted that small MS4s are required to report only in years two and four of permit coverage. While this was correct for small MS4s that have already been permitted for at least one permit term, if the permittee is in its first permit term, it is required to report annually for the entire permit term. The final rule corrects this inaccuracy. See 40 CFR 122.34(d)(3).
• Clarification of the types of MS4 permit holders that can be chosen under the data element for MS4 Permit Class. The final rule includes a minor update to the examples of MS4 permit types under the MS4 Permit Class data element, which better reflect the types of general permits that are described under the revised Phase II permitting regulations. The following examples replace the previous examples: Large/Medium MS4 permit (Phase I), Small MS4 permit (Phase II)—Comprehensive General Permit, Small MS4 permit (Phase II)—Two-Step General Permit, Small MS4 permit (Phase II)—Individual Permit.

C. Other Clarifications Requested by NPDES Permitting Authorities

During meetings of the EPA-State Stormwater technical workgroup (see Section III), Regional and state subject matter experts suggested the need for additional clarification to the MS4 data elements. The clarifications that are included in the final rule are described as follows.

• Revised description of the types of entities potentially covered under an MS4 permit. The data description that accompanied the unique MS4 identifier data element did not reflect the fact that regulated small MS4s can also include so-called “non-traditional MS4s,” such as colleges or universities, military installations, transportation systems, and state and federal facilities. In order to more accurately describe the different types of MS4s that can be regulated, the final rule includes modified examples of the types of MS4 entities that are intended to be included, including those that are non-traditional MS4s.

A further clarification is added to better describe how the unique identifier can be used to apply to multiple MS4 entities covered under one permit by indicating, for example, that if one MS4 NPDES permit covers two cities, the authorized NPDES program may elect to assign each city with a unique identifier. A minor change is also made to the Data Name to better describe the types of entities that may be regulated; the Data Name now reads as “Unique MS4 Regulated Entity Identifier” instead of “Unique Identifier for Each Municipality Covered Under MS4 Permit.”

Additionally, to better match the existing regulations, the final rule replaces references throughout Table 2 to “municipality” with the word or phrase “entity” or “MS4-regulated entity.”

• Inclusion of a unique identifier for each permit requirement or set of permit requirements. The final rule requires that each unique permit requirement or set of permit requirements be designated with a “Unique MS4 Activity Identifier.” This addition is intended to improve the accuracy of compliance reporting by linking permit requirements to a unique identifier. The EPA does not consider this additional identifier to constitute a change in reporting burden given that information on permit requirements is already required; this new element merely ensures that each individual permit requirement (referred to in appendix A as “the one or more unique codes/descriptions that identify” the permit requirement) can be recognized with its own unique number or other identifier. Additionally, the permitting authority can automate the creation of these data during development of the final permit terms and conditions.
• Consolidation of data elements related to tracking implementation activities performed by other government entities. The previous data elements required information to be submitted with the annual report on whether the MS4 permittee was relying on other government entities to satisfy any permit obligations, and to provide the status of their implementation activities. To assist the states in more accurately tracking these other government entities to the specific permit requirements for which they have assumed responsibility, the final rule moves the requirement to report on the MS4's reliance on other government entities to a different section of Table 2, namely the MS4 NPDES Permit-Related Information section. The Workgroup (see Background) indicated that this change would enable NPDES permitting authorities to obtain information on the MS4's reliance on other government entities in a way that will better enable them to ensure that reporting on the compliance status of these specific permit responsibilities will be accurate and more easily understood. By making this change, the EPA deletes two existing elements, which would already be addressed, namely the “MS4 Reliance on Other Government Entities Status” and “MS4 Reliance on Other Government Entities Permit Component Status” data elements.
• Clarification of permit information required for storm sewer system map. The final rule clarifies that, for previously permitted MS4 permittees, rather than requiring information on “the status of the permittee's storm sewer system map” associated with the Illicit Discharge Detection and Elimination permit requirement, a more direct way of conveying this information is to request the “date of the most recent storm sewer system map.” Additionally, the final rule clarifies that the requirement to show all “MS4 outfalls” on the storm sewer system map excludes private outfalls. This clarification is consistent with the regulatory definition of MS4, which is limited to stormwater conveyances “owned or operated by a . . . public body” at 40 CFR 122.26(b)(8)(i). Privately-owned conveyances and their associated outfalls do not fall within the definition of an MS4 because they are not “owned or operated by a . . . public body.”
• Relocation of MS4 industrial stormwater control data element. The final rule moves the Phase I MS4 industrial stormwater control data element from its previous location in the “Compliance Monitoring Activity” section of Table 2 to the newly named MS4 NPDES Permit-Related Information section. This change is not substantive, but merely intended to better reflect the fact that this information is typically provided prior to permit coverage, much like the other information included in that same section.

Additionally, the final rule adds an accompanying data element for any permit deadlines associated with the industrial stormwater control requirements. The EPA does not consider this a new reporting burden, but rather a clarification that where the permit establishes specific deadlines for actions related to industrial stormwater control, compliance with these dates must be tracked.

• Ability to submit further information regarding instances of noncompliance. The data element requiring information on whether the permittee has complied with the MS4 permit requirements previously limited the information submitted to a “Yes” or “No” response. Members of the Workgroup recommended that MS4s be given the opportunity to provide further information for context if the MS4 reports that it has not complied with one or more permit requirements. To address this recommendation, the final rule clarifies that MS4s as necessary will be asked to provide information related to noncompliance.
• Clarification of information required to be reported in the summary of activities to comply with the MS4 permit requirements. The final rule clarifies that among the information that must be reported by the MS4 as part of its annual report is a summary of activities undertaken (1) as part of the industrial stormwater control program (for Phase I MS4s and select Phase II MS4s that have industrial stormwater requirements), and (2) to comply with permit requirements during the next reporting period. This clarification does not constitute a new reporting burden since this information was already required to be reported; the text just makes the requirement clearer.
• Clarification regarding how information on enforcement actions taken by Phase II MS4s is to be reported. The final rule clarifies that Phase II MS4s are not required to distinguish between different types of enforcement action, as Phase I MS4s are required to do. In contrast with Phase I MS4s, Phase II MS4s may simply report any enforcement action taken as a “Phase II MS4 Enforcement Action.” The permitting authority may elect to provide this option as a system default so that MS4 permittees may simply select “Phase II MS4 Enforcement Action” to fulfill this requirement for the reporting period.
• Clarification related to data elements that may not apply to non-traditional MS4s. The final rule provides further clarification on the data elements that may not apply because non-traditional MS4s typically do not possess the requisite legal authority to enforce stormwater laws. A sentence is added to three data elements (i.e., “MS4 Enforcement Action Type,” “MS4 Enforcement Action Total by Type,” and “MS4 Enforcement Agency”) explaining that there may be different reported data for non-traditional MS4s (e.g., transportation MS4s) since they may not have legal authority to enforce one or more MS4 permit requirements and may report on items like referrals to the state permitting authorities or use mechanisms such as encroachment permits.
• Clarification regarding how to report the specific MS4 enforcement agency in the annual report. The final rule provides alternate wording to better explain how MS4 permittees should specifically identify in the annual report the specific MS4 enforcement agency that was responsible for taking enforcement action during the reporting period. The final language explains that the permittee will select the MS4 enforcement agency from among the unique MS4 regulated entities identified during the permit application process for co-permittees applying for coverage under an individual permit, unless there is only one regulated entity.

V. Statutory and Executive Orders Reviews

Additional information about these statutes and Executive orders can be found at http://www2.epa.gov/​laws-regulations/​laws-and-executive-orders.

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 therefore was not submitted to the Office of Management and Budget (OMB) for review.

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

This action does not impose any new 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. The final rule imposes no new information collection burdens beyond what has already been approved by OMB for the NPDES eRule published on October 22, 2015 (80 FR 64064). This final rule is limited to updating the language used to describe various data requirements for MS4 permittees to reflect recent changes to the underlying NPDES regulations and to correct various errors and omissions.

D. 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, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. This final rule imposes no new regulatory burdens on regulated entities in the NPDES program. The action is limited to updating the language used to describe various data requirements for MS4 permittees to reflect recent changes to the underlying NPDES regulations, to correct various errors and omissions, to make targeted clarifications by request of state NPDES permitting authorities. The EPA has therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million or more as described in 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.

F. 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.

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This final rule does not have tribal implications, as specified in Executive Order 13175. The EPA considered the potential impacts on tribes and concluded that there would be no substantial direct compliance costs or impact on tribes. Because the purpose of the final rule is to eliminate inconsistencies between regulations and application forms, improve permit documentation, transparency and oversight, provide clarifications to existing regulations, and delete outdated provisions, it is not expected to 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. Executive Order 13175 does not apply to this action and the EPA determined that tribal consultation is not necessary for this action.

The EPA notes that it consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing the final NPDES eRule, which this final rule modifies, to permit them to have meaningful and timely input into its development. A summary of that consultation is provided in Section VIII.F of the final NPDES eRule preamble at 80 FR 64094.

H. 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 the 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.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This final rule offers the same environmental justice benefits that were described in the final NPDES eRule preamble in Section VIII.J. That final rule preamble states that “[a]s described in the context of non-monetary benefits, discussed in Section VI and described below, the final rule would significantly increase transparency and access to crucial information that is relevant to the protection of the health and environment of minority, low income, and tribal populations.” See 80 FR 64095.

L. Congressional Review Act

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of Congress and to 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 in 40 CFR Part 127

• Environmental protection
• Electronic data processing
• Municipal separate storm sewer systems
• Reporting and recordkeeping requirements
• Water pollution control

For the reasons set forth in the preamble, the EPA amends 40 CFR part 127 as follows:

PART 127—NPDES ELECTRONIC REPORTING

1. The authority citation for part 127 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

2. Amend appendix A as follows:

a. In Table 1, revising entry 6 and footnote 2;

b. In Table 2:

i. Revising the section entitled “Basic Facility Information;”

ii. Under the heading “Basic Permit Information,” revising the entries for “NPDES ID,” “Master General Permit Number,” and “NPDES Data Group Number;”

iii. Removing section entitled “Municipal Separate Storm Sewer System (MS4) Information on NPDES Permit Application or Notice of Intent” and adding in its place the section entitled “Municipal Separate Storm Sewer System (MS4) NPDES Permit-Related Information;” and

iv. Revising the section entitled “Compliance Monitoring Activity Information (Data Elements Specific to Municipal Separate Storm Sewer System Program Reports)” and notes 1, 2, and 3 to the table.

The revisions and additions read as follows:

Appendix A to Part 127—Minimum Set of NPDES Data