Petitioners challenge a rule issued by the United States Environmental Protection Agency pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1387, to control pollutants introduced into the nation's waters by storm sewers.

Storm sewers drain rainwater and melted snow from developed areas into water bodies that can handle the excess flow. Draining stormwater picks up a variety of contaminants as it filters through soil and over pavement on its way to sewers. Sewers are also used on occasion as an easy (if illicit) means for the direct discharge of unwanted contaminants. Since storm sewer systems generally channel collected runoff into federally protected water bodies, they are subject to the controls of the Clean Water Act. In October of 1999, after thirteen years in process, the Environmental Protection Agency ("EPA") promulgated a final administrative rule (the "Phase II Rule"1 or "the Rule") under § 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p), mandating that discharges from small municipal separate storm sewer systems and from construction sites between one and five acres in size be subject to the permitting requirements of the National Pollutant Discharge Elimination System ("NPDES"), 33 U.S.C. §§ 1311(a), 1342. EPA preserved authority to regulate other harmful stormwater discharges in the future.

In the three cases consolidated here, petitioners and intervenors challenge the Phase II Rule on twenty-two constitutional, statutory, and procedural grounds. We remand three aspects of the Rule concerning the issuance of notices of intent under the Rule's general permitting scheme. We affirm the Rule against all other challenges.

Stormwater runoff is one of the most significant sources of water pollution in the nation, at times "comparable to, if not greater than, contamination from industrial and sewage sources."2 Storm sewer waters carry suspended metals, sediments, algae-promoting nutrients (nitrogen and phosphorus), floatable trash, used motor oil, raw sewage, pesticides, and other toxic contaminants into streams, rivers, lakes, and estuaries across the United States.3 In 1985, three-quarters of the States cited urban stormwater runoff as a major cause of waterbody impairment, and forty percent reported construction site runoff as a major cause of impairment.4 Urban runoff has been named as the foremost cause of impairment of surveyed ocean waters.5 Among the sources of stormwater contamination are urban development, industrial facilities, construction sites, and illicit discharges and connections to storm sewer systems.6

Congress enacted the Clean Water Act in 1948 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (originally codified as the Federal Water Pollution Control Act, 62 Stat. 1155). The Clean Water Act prohibits the discharge of pollutants from a "point source"7 into the waters of the United States without a permit issued under the terms of the National Pollutant Discharge Elimination System, 33 U.S.C. §§ 1311(a), 1342, which requires dischargers to comply with technology-based pollution limitations (generally according to the "best available technology economically achievable," or "BAT" standard). 33 U.S.C. § 1311(b)(2)(A). NPDES permits are issued by EPA or by States that have been authorized by EPA to act as NPDES permitting authorities. 33 U.S.C. § 1342(a)-(b). The permitting authority must make copies of all NPDES permits and permit applications available to the public, 33 U.S.C. §§ 1342(j), 1342(b)(3); state permitting authorities must provide EPA notice of each permit application, 33 U.S.C. § 1342(b)(4); and a permitting authority must provide an opportunity for a public hearing before issuing any permit, 33 U.S.C. §§ 1342(a)(1), 1342(b)(3); cf. 33 U.S.C. § 1251(e) (requiring public participation).

Storm sewers are established point sources subject to NPDES permitting requirements. Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1379 (D.C.Cir.1977) (holding unlawful EPA's exemption of stormwater discharges from NPDES permitting requirements); Natural Res. Def. Council, 966 F.2d at 1295.8 In 1987, to better regulate pollution conveyed by stormwater runoff, Congress enacted Clean Water Act § 402(p), 33 U.S.C. § 1342(p), "Municipal and Industrial Stormwater Discharges." Sections 402(p)(2) and 402(p)(3) mandate NPDES permits for stormwater discharges "associated with industrial activity," discharges from large and medium-sized municipal storm sewer systems, and certain other discharges. Section 402(p)(4) sets out a timetable for promulgation of the first of a two-phase overall program of stormwater regulation. Id. at § 1342(p)(2)-(4); Natural Res. Def. Council, 966 F.2d at 1296. In 1990, pursuant to § 402(p)(4), EPA issued the Phase I Rule regulating large discharge sources.9

In Clean Water Act § 402(p), Congress also directed a second stage of stormwater regulation by ordering EPA to identify and address sources of pollution not covered by the Phase I Rule. Section 402(p)(1) placed a temporary moratorium (expiring in 1994) on the permitting of other stormwater discharges pending the results of studies mandated in § 402(p)(5) to identify the sources and pollutant content of such discharges and to establish procedures and methods to control them as "necessary to mitigate impacts on water quality." 33 U.S.C. § 1342(p)(5). Section 402(p)(6) required that EPA establish "a comprehensive program to regulate" these stormwater discharges "to protect water quality," following the studies mandated in § 402(p)(5) and consultation with state and local officials. Id. at § 1342(p)(6).

EPA proposed the Phase II Rule in January of 1998.10 In October, 1999, Congress passed legislation precluding EPA from promulgating the new Rule until EPA submitted an additional report to Congress supporting certain anticipated aspects of the Rule.11 EPA was also required to publish its report in the Federal Register for public comment. Pub.L. No. 106-74, § 431(c), 113 Stat. at 1097. Later that month, EPA submitted the required ("Appropriations Act") study and promulgated the Rule.12

Under the Phase II Rule, NPDES permits are required for discharges from small municipal separate storm sewer systems ("small MS4s") and stormwater discharges from construction activity disturbing between one and five acres ("small construction sites"). 40 C.F.R. §§ 122.26(a)(9)(i)(A)-(B). Small MS4s may seek permission to discharge by submitting an individualized set of best-management plans in six specified categories, id. at § 122.34, either in the form of an individual permit application, or in the form of a notice of intent to comply with a general permit. Id. at § 122.33(b). Small MS4s may also seek permission to discharge through an alternative process, under which a permit may be sought without requiring the operator to regulate third parties, id. at §§ 122.33(b)(2)(ii), 122.26(d).13 Small construction sites may apply for individual NPDES permits or seek coverage under a promulgated general permit. Id. at § 122.26(c). EPA also preserved authority to regulate other categories of harmful stormwater discharges on a regional, as-needed basis. Id. at § 122.26(a)(9)(i)(C)-(D).

The Rule was challenged in the Fifth, Ninth, and D.C. Circuits in three separate actions ultimately consolidated before the Ninth Circuit.

The Texas Cities Coalition on Stormwater and the Texas Counties Stormwater Coalition (collectively, "the Municipal Petitioners") assert that EPA lacked authority to require permitting, that its promulgation of the Rule was procedurally defective, that the Rule establishes categories that are arbitrary and capricious, and that the Rule impermissibly requires municipalities to regulate their own citizens in contravention of the Tenth Amendment and to communicate a federally mandated message in contravention of the First Amendment. The Natural Resources Defense Council ("NRDC") intervened on behalf of EPA.

Environmental Defense Center, joined by petitioner-intervenor NRDC ("the Environmental Petitioners"), asserts that the regulations fail to meet minimum Clean Water Act statutory requirements because they constitute a program of impermissible self-regulation, fail to provide required avenues of public participation, and neglect to address stormwater runoff associated with forest roads and other significant sources of runoff pollution.

The American Forest & Paper Association ("AF & PA") and the National Association of Home Builders ("the Industrial Petitioners") assert that promulgation of the Rule was procedurally defective and violated the Regulatory Flexibility Act, that EPA's retention of authority to regulate future sources of runoff pollution is ultra vires, and that the decision to regulate discharge from construction sites one to five acres in size is arbitrary and capricious. NRDC again intervened on behalf of EPA.

We have jurisdiction pursuant to section 509(b)(1) of the Clean Water Act, 33 U.S.C. § 1369(b)(1) (assigning review of EPA effluent and permitting regulations to the Federal Courts of Appeals).

The Municipal Petitioners' primary contention is that the Phase II Rule compels small MS4s to regulate citizens as a condition of receiving a permit to operate, and that EPA lacks both statutory and constitutional authority to impose such a requirement. Because we avoid considering constitutionality if an issue may be resolved on narrower grounds, Greater New Orleans Broadcasting Ass'n v. United States, 527 U.S. 173, 184, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999), we first ask whether the Phase II Rule is supported by statutory authority.

The Municipal Petitioners assert that the statutory command in Clean Water Act § 402(p)(6) that EPA develop a "comprehensive program to regulate" small MS4s did not authorize a program based on NPDES permits. Petitioners argue that because § 402(p)(6) explicitly indicates elements that the program may contain (performance standards, guidelines, etc.) without mentioning "permits," Congress must have intended that the program exclude permitting.14

The fact that "permitting" is not included on a statutory list of elements that the program "may" include is not determinative, because the list is manifestly nonexclusive. The only constraints are that the § 402(p)(6) regulations be based on the § 402(p)(5) studies, that they be issued in consultation with state and local officials, and that — "at minimum" — they establish priorities, requirements for state stormwater management programs, and expeditious deadlines, and constitute a comprehensive program "to protect water quality." 33 U.S.C. § 1342(p)(6). EPA was free to adopt any regulatory program, including a permitting program, that included these elements. See Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (deference to an agency's reasonable interpretation is required unless Congress expressed its intent unambiguously). It is more reasonable to interpret congressional silence about permits as an indication of EPA's flexibility not to use them than as an outright prohibition.15

The Municipal Petitioners further contend that their interpretation is supported by the structure of § 402(p), which expressly requires permits for large and medium sized MS4s in a separate section, § 402(p)(3)(B).16 However, as EPA counters, the language in § 402(p)(3) requiring permits for municipal storm sewers may be interpreted to apply both to Phase I and Phase II MS4s. Moreover, as respondent-intervenor NRDC notes, the mere existence of the § 402(p)(1) permitting moratorium, designed to apply only to Phase II dischargers, necessarily implies that EPA has the authority to require permits from these sources after the 1994 expiration of the moratorium.

Since there would have been no need to establish a permitting moratorium for these sources if the sources could never be subject to permitting requirements, petitioners' interpretation violates the bedrock principle that statutes not be interpreted to render any provision superfluous. See Burrey v. Pacific Gas & Elec. Co., 159 F.3d 388, 394 (9th Cir.1998). EPA's interpretation of its mandate under § 402(p)(6) was reasonable and EPA acted within its statutory authority in formulating the Phase II Rule as a permitting program.

The Municipal Petitioners contend that the Phase II Rule on its face compels operators of small MS4s to regulate third parties in contravention of the Tenth Amendment. We note that a facial challenge must show that there are no circumstances under which the challenged provisions would be constitutional. Legal Aid Soc'y v. Legal Servs. Corp., 145 F.3d 1017, 1023-24 (9th Cir.1998).17 We conclude that the Rule does not violate the Tenth Amendment, because it directs no unconstitutional coercion.

a. The Individual and General Permit Options. The Phase II Rule requires any operator of a small MS4 applying for an individual permit or submitting a notice of intent for coverage under a general permit to specify plans for compliance with a series of six minimum control measures designed to protect water quality. 40 C.F.R. § 122.34. These "Minimum Measures" require an applicant to propose programs for: (1) conducting public education and outreach on stormwater impacts, id. at § 122.34(b)(1); (2) engaging public participation in the development of stormwater management programs, id. at § 122.34(b)(2); (3) detecting and eliminating illicit discharges to the MS4, id. at § 122.34(b)(3); (4) reducing pollution to the MS4 from construction activities disturbing one acre or more, id. at § 122.34(b)(4); (5) minimizing water quality impacts from development and redevelopment activities that disturb one acre or more, id. at § 122.34(b)(5); and (6) preventing or reducing pollutant runoff from municipal activities, id. at § 122.34(b)(6).

The Municipal Petitioners contend that the measures regulating illicit discharges, small construction sites, and development activities interfere excessively with local government functions and unconstitutionally compel small MS4 operators to regulate third parties, i.e. upstream dischargers. The Illicit Discharge Detection and Elimination measure requires that a permit seeker prohibit non-stormwater discharges to the MS4 and implement appropriate enforcement procedures. 40 C.F.R. § 122.34(b)(3)(ii)(B).18 The Construction Site Stormwater Runoff Control measure requires a permit seeker to implement and enforce a program to reduce stormwater pollutants from small construction sites. Id. at §§ 122.34(b)(4)(i)-(ii).19 It mandates erosion and sedimentation controls, site plan reviews that take account of water quality impacts, site inspections, and the consideration of public comment, and requires that construction site operators implement erosion, sedimentation, and waste management best management practices. Id. The Post-Construction/New Development measure requires permit seekers to address post-construction runoff from new development and redevelopment projects disturbing one acre or more. Id. at § 122.34(b)(5)(ii)(B).20 Noting that most MS4s are operated by municipal governments,21 and that "[t]he drainage of a city in the interest of the public health and welfare is one of the most important purposes for which the police power can be exercised," New Orleans Gas Light Co. v. Drainage Comm'n, 197 U.S. 453, 460, 25 S.Ct. 471, 49 L.Ed. 831 (1905), the Municipal Petitioners argue that requiring Phase II permit applicants to enact "ordinances or other regulatory measures" amounts to federal commandeering in contravention of the Tenth Amendment.22 See New York v. United States, 505 U.S. 144, 188, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992).

EPA counters that nothing in the Phase II Rule violates the Tenth Amendment, because it extends to small MS4s a generally applicable regulatory scheme23 that does not excessively interfere with municipal functions.24 It argues that the Phase II Rule no more trespasses on state sovereignty than did the Driver's Privacy Protection Act ("DPPA") unanimously upheld in Reno v. Condon, 528 U.S. 141, 151, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000), as a rule of general applicability that "incidentally" applied to States—even though the universe of entities to which the DPPA could in fact apply included only States. 528 U.S. at 151, 120 S.Ct. 666 (declining to address whether general applicability is a constitutional requirement "because the DPPA is generally applicable"). EPA contends that the federal government need not avoid all requirements that cause States and localities to engage their legislative or executive processes, but only those that would "excessively interfere" with the functioning of those governments. Printz v. United States, 521 U.S. 898, 932, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). EPA argues that the federal government's great interest in preventing water pollution justifies the "minimal interference" with municipal functions that the Minimum Measures might occasion, and asserts that the Measures by definition could not interfere "excessively" with state or local governments, since MS4s are only required to reduce pollutants to the "maximum extent practicable." 40 C.F.R. § 122.34(a).

b. Tenth Amendment Standards. The Tenth Amendment provides that "all is retained [by the States] which has not been surrendered [to the federal government]." New York, 505 U.S. at 156, 112 S.Ct. 2408 (internal quotations omitted). If a power is delegated to Congress by the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States, and Congress's exercise of that power does not intrude impermissibly on state sovereignty. Id.; Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 549, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). But the Tenth Amendment also signals constitutional protection for our system of dual sovereignty, confirming "that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York, 505 U.S. at 157, 112 S.Ct. 2408. Among the most important limits implied by the Tenth Amendment are the circumstances under which the federal government may not conscript state and local governments to regulate on its behalf — as petitioners contend EPA has inappropriately done in the Phase II Rule.

The Supreme Court has made clear that while Congress has substantial power under the Constitution to encourage the States to regulate according to federal preferences, "the Constitution does not confer upon Congress the ability simply to compel the States to do so." New York, 505 U.S. at 149, 112 S.Ct. 2408. Congress must not "commandeer[] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). See also Printz, 521 U.S. at 935, 117 S.Ct. 2365 ("The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers ... to administer or enforce a federal regulatory program.").

The key proscribed element is coercion. In New York, where the Court invalidated a federal law requiring States either to regulate radioactive waste according to a Congressional mandate or to take title to the waste, the Court held that "[t]he Federal Government may not compel the States to enact or administer a federal regulatory program." 505 U.S. at 188, 112 S.Ct. 2408 (invalidating part of the Low-Level Radioactive Waste Policy Amendment Act of 1985) (emphasis added). In contrast, Hodel sustained a federal law requiring States to choose between administering a federally-directed regulatory program or allowing federal authorities to regulate the mining activities of third parties within each State, because "there can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." 452 U.S. at 288, 101 S.Ct. 2352 (upholding the Surface Mining Control and Reclamation Act of 1977). Similarly, in Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982) ("FERC"), the Supreme Court sustained the Public Utility Regulatory Policies Act (PURPA), requiring States to follow certain procedures and consider adopting federally specified standards, because "there is nothing in PURPA directly compelling the States to enact a legislative program." Id. at 765, 102 S.Ct. 2126 (internal quotation omitted).

While Congress may not coerce a State to regulate according to its terms, Congress may encourage a State to regulate in a manner consistent with federal interests. New York, 505 U.S. at 166-67, 112 S.Ct. 2408. Under the spending power, Congress may seek to influence a State's policy choices by attaching conditions on the receipt of federal funds, as long as the conditions bear some relationship to the purpose of the federal spending. South Dakota v. Dole, 483 U.S. 203, 206-08, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (upholding federal statute conditioning State receipt of certain federal highway funds on adoption of minimum drinking age of twenty-one). And where Congress is authorized to regulate private activity under the Commerce Clause, it may offer States the choice of regulating that activity according to federal standards or having state law preempted by federal regulation. Hodel, 452 U.S. at 288, 101 S.Ct. 2352; FERC, 456 U.S. at 759, 764-67, 102 S.Ct. 2126 (Congress may require States that choose to regulate in a preemptible field to follow federally mandated procedures). As the Court has recognized, "to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties." Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 589-90, 57 S.Ct. 883, 81 L.Ed. 1279 (1937).

Moreover, the Court has distinguished between federal laws that unconstitutionally compel state regulation of third parties and generally applicable federal laws that permissibly regulate the activities of States that choose to act in the regulated field. South Carolina v. Baker, 485 U.S. 505, 514, 108 S.Ct. 1355, 99 L.Ed.2d 592 (1988); Condon, 528 U.S. at 151, 120 S.Ct. 666. In South Carolina v. Baker, upholding an Internal Revenue Code provision that effectively forced States to issue bonds in registered form, the Supreme Court explained that the provision was permissible because it merely "regulates state activities; it does not ... seek to control or influence the manner in which States regulate private parties." 485 U.S. at 514, 108 S.Ct. 1355. Responding to the claim that the provision commandeered state legislative and administrative process because many States had to enact legislation authorizing and administering the new bond registration program, the Court observed:

Such "commandeering" is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.

Id. at 514-15, 108 S.Ct. 1355. Even where state compliance with a generally applicable federal law "thrusts upon the States all of the day-to-day responsibility for administering its complex provisions," no violation of the Tenth Amendment occurs when the federal law "does not require the States in their sovereign capacity to regulate their own citizens." Condon, 528 U.S. at 149-50, 151, 120 S.Ct. 666 (upholding the DPPA because, though it clearly regulates state activity, it does not require the States to regulate their own citizens).

Where state action is incidentally burdened by a federal law of general applicability, the Court has indicated that the Tenth Amendment may still be implicated if the law "excessively interfere[s] with the functioning of state governments." Printz, 521 U.S. at 932, 117 S.Ct. 2365 ("[W]here, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty... a `balancing' analysis is inappropriate....").

The Tenth Amendment thus requires that we evaluate whether the Phase II Rule coerces state action (leaving a State no choice but to comply with a federal mandate), whether the mandated action forces the State to regulate third parties (as opposed to regulating state activities legitimately subject to generally applicable federal law), and, if the federal law is generally applicable, whether it nevertheless excessively interferes with the functioning of state government.

In conducting this inquiry, however, we are sensitive to the fact that solving pressing environmental problems may require the formation of partnerships between federal and state authorities that the Supreme Court has referred to as "program[s] of cooperative federalism." Hodel, 452 U.S. at 289, 101 S.Ct. 2352 ("[T]he Surface Mining Act establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs...."). Although local governments have traditionally enjoyed broad authority over drainage activities, New Orleans Gas Light Co., 197 U.S. at 460, 25 S.Ct. 471, they do not enjoy exclusive sovereign authority over actions that contribute pollutants to the nation's waters.

We conclude that even if the Individual and General Permit options of the Phase II Rule require operators of small MS4s to regulate third parties, the Phase II Rule entails no unconstitutional coercion because operators of small MS4s have two alternatives to the Individual and General Permit options: the option of not discharging and the Alternative Permit option.

c. The Option of Not Discharging. The boundary between federal and local water resources is uniquely permeable; state water generally becomes federal along its journey to the sea,25 while federal waters from sources other than rainfall always begin as local water somewhere. "The Clean Water Act anticipates a partnership between the States and the Federal Government, animated by a shared objective: `to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) (quoting 33 U.S.C. § 1251(a)). For this reason, Congress required EPA to consult with state and local officials in mandating best management practices, 33 U.S.C. § 1342(p)(6) (in the context of the Phase II Rule); 33 U.S.C. § 1251(b) (highlighting the general Clean Water Act policy "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution").

If the Phase II Rule compelled state authorities to regulate third parties or involved excessive interference with local governance, it would transgress constitutional bounds regardless of the need for cooperative approaches to meet the important objectives of the Clean Water Act. But the Rule allows regulated MS4s flexibility within which to meet their obligations under federal law without unduly compromising local authority. The Rule does not coerce local governments to regulate third parties and does not excessively interfere with the state activities it regulates under legitimate commerce clause authority, but establishes a constitutional program of cooperative federalism like that upheld in Hodel.

Compliance with the Minimum Measures should not "excessively interfere" with the functioning of municipalities. The public education requirement may be satisfied by distributing leaflets or making public service announcements; the public participation measure requires only that small MS4s comply with state, Tribal and local public notice requirements when implementing a public involvement/participation program; and the pollution prevention measure requires only that a permit-seeker train its staff to reduce runoff pollution from municipal operations. The illicit discharge, construction, and post-development measures may impose greater burdens, but each requires only that a small MS4 take reasonable steps to regulate the pollutant intake of their systems to minimize the introduction of pollutants to waters of the United States.

The Minimum Measures addressing illicit discharges, construction-related pollution, and post-development pollution each explicitly require compliance "through ordinance, or other regulatory mechanism." 40 C.F.R. § 122.34(b)(3)-(b)(5). Compliance with the first and last of these Minimum Measures is possible by taking action entirely on the MS4 side of the interface. For example, an MS4 could manage the problem of illicit discharges by sealing off illicit connections at the point of entry to the MS4, rather than regulating the content of third party discharges. Similarly, nothing in the language of the post-development measure requires that the proposed best management plan addressing post-construction runoff regulate a third party. By contrast, the construction measure explicitly requires the permit-seeker to require construction site operators to implement appropriate erosion and sedimentation controls, and to control specified forms of waste products. 40 C.F.R. § 122.34(b)(4)(B)-(C). This language26 appears to require what the federal government may not force a local government to do: enact and enforce a federal regulatory program.27

Nevertheless, we cannot say that this Measure compels state authorities to regulate third parties, because local governments are not compelled to discharge collected stormwater to federal waters. Local governments make choices about how they wish to manage stormwater runoff, and in some cases take advantage of the presence of federal waters as a means of disposing of their own stormwater. While the Municipal Petitioners contend that municipalities cannot avoid discharging to federal waters, (because MS4s, broadly defined to include even roads with drainage systems, necessarily channel stormwater into downhill water bodies that ultimately enter the waters of the United States), alternative means for disposing of collected stormwater remain open to local governments that provide storm sewer services. Such alternatives include recycling programs and wetland construction. That these alternatives may prove more expensive does not alter the legal framework under which municipalities choose to discharge pollutants into the waters of the United States.28

Because small MS4 operators discharge collected stormwater to federal waters voluntarily, they also accede to the requirements of Phase II permits voluntarily—if they wished to avoid those requirements, they could elect to stop discharging into federal waters. Thus small MS4 operators are not compelled by the terms of Phase II permits.

Just as the Tenth Amendment does not prevent the federal government from persuading state action by conditioning the receipt of federal funds it is not required to bestow, the Tenth Amendment does not prevent the federal government from conditioning permission to discharge into federal waters on municipal adoption of a storm water management program. In both cases, federal authorities persuade state authorities to take action that might otherwise encroach upon state sovereignty because the action is exchanged, not compelled, for a good the federal government was not required to provide in the first place.

In this sense, the Phase II requirements are comparable in spirit to the mandate issued to the States under the DPPA and upheld in Condon.29 The Clean Water Act has long been recognized as a valid exercise of Congressional power to regulate interstate commerce, see U.S. Const. art. I, § 8, cl. 3; Natural Res. Def. Council v. EPA, 863 F.2d 1420, 1436 (9th Cir.1988), and a requirement that a State or municipality follow a generally applicable regulatory standard if it decides to engage in an activity legitimately regulated by the federal government does not usually violate the Tenth Amendment. See Condon, 528 U.S. at 151, 120 S.Ct. 666. As in Condon, where the federal government regulated States only to the extent that those States acted as database owners selling data, under Phase II, the operator of an MS4 need only comply with Phase II regulations to the extent that the MS4 receives pollutants from a third party and discharges them into the waters of the United States. 64 Fed.Reg. 68,765-66 (Dec. 8, 1999).

But even if we were to assume that States and localities have no choice but to discharge, and therefore no choice but to secure Phase II permits, a plain reading of the Phase II Rule demonstrates that they still would not face unconstitutional compulsion. A directive to enact a regulatory program is unconstitutionally coercive only if no constitutional alternative is provided. And the Phase II Rule offers an alternative means for obtaining permission to discharge.

d. The Alternative Permit Option. Operators of small MS4s may opt to avoid the requirements of Phase II individual and general permits under an "Alternative Permit" option. 40 C.F.R. §§ 122.33(b)(2)(ii), 122.26(d). This Alternative Permit allows operators of small MS4 to seek individualized permission to discharge based on the permitting program established by the Phase I Rule for large and medium-sized MS4s. This option requires the permit seeker to propose management programs that address substantive concerns similar to those raised in the Minimum Measures, but does not require the permit seeker to regulate the actions of third parties upstream from the point of discharge to federal waters.30

EPA urges that the Minimum Measures are facially constitutional but that even if they were not, the Alternative Permit option relieves permit seekers of the obligation to take action that may approach the regulation of third parties. Because municipalities may choose an alternative that does not require regulation of third parties, EPA argues, the Phase II Rule does not run afoul of the Tenth Amendment.31

The Municipal Petitioners maintain that the alternative program suffers from the same constitutional flaws as the general permit program, because the provisions addressing pollution from construction, development, illicit discharges, and municipal activities still functionally compel municipal authorities to administer a federal regulatory program.32

However, the requirements of the Alternative Permit option repeat generally applicable rules to which local governments are legitimately subject when they engage in the maintenance of storm sewers that discharge to federally protected waters, and for the reasons cited in discussing the Minimum Measures, they do not threaten excessive interference with local governance. "[R]ather than seeking to control or influence the manner in which States regulate private parties," Condon, 528 U.S. at 150, 120 S.Ct. 666 (internal quotations omitted), the Alternative Permit requirements can be satisfied without obligating the operator of a small MS4 to regulate anyone.

Reducing "the discharge of pollutants from an MS4 which receives discharges from areas of new development" according to § 122.26(d)(2)(iv)(A) may be accomplished without any regulation of developers; an MS4 operator could reduce pollutant discharges by constructing artificial wetlands or implementing other structural treatment controls. An MS4 could prevent illicit discharges as required by § 122.26(d)(2)(iv)(B) simply by sealing off points of entry where illicit discharges are detected. Moreover, this option allows an MS4 simply to request a discharger to seek its own NPDES permitting arrangement, relieving the MS4 of any direct regulation of problem dischargers.33 An MS4 may similarly monitor and control pollutants from landfills and hazardous waste facilities in satisfaction of § 122.26(d)(2)(iv)(C) without directly regulating third parties. Finally, an MS4 may maintain structural and non-structural best management practices34 regarding construction sites in satisfaction of § 122.26(d)(2)(iv)(D) without regulating third parties.35

Because the Alternative option provides applicants an avenue of securing a permit consistent with the Tenth Amendment, no permit seeker is compelled to negotiate the one questionable provision under the General Permit option (the Measure facially requiring municipal regulation of construction professionals). The Municipal Petitioners' claim that the Phase II Rule violates the Tenth Amendment therefore fails.

3. Statutory Authority for the Minimum Measures

The Municipal Petitioners contend that, even if constitutional, the Minimum Measures of the General Permit option exceed EPA's statutory authority under § 402(p). Petitioners argue that nothing in the statute confers authority on EPA to require small MS4 operators to regulate third parties as a condition of receiving a permit, and that EPA's contrary interpretation is so constitutionally questionable that it is not entitled to Chevron deference. See Solid Waste Agency v. Army Corps of Engineers, 531 U.S. 159, 172-73, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). EPA argues that the nonexclusive list of statutory elements in § 402(p)(6) cannot be said to exclude a non-listed element, and that EPA's interpretation that the statute allows the Minimum Measures is thus reasonable and entitled to deference.

We agree that EPA's adoption of the Minimum Measures represents a permissible interpretation of its authority under § 402(p)(6). See Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. The Rule does not violate the Tenth Amendment and the Measures are not inconsistent with the language or structure of § 402(p) or any other part of the Clean Water Act.

4. The First Amendment and the Minimum Measures

The Municipal Petitioners contend that the Public Education and Illicit Discharge Minimum Measures compel municipalities to deliver EPA's political message in violation of the First Amendment. The Phase II Rule's "Public Education and Outreach" Minimum Measure directs regulated small MS4s to "distribute educational materials to the community ... about the impacts of stormwater discharges on water bodies and the steps the public can take to reduce pollutants in stormwater runoff." 40 C.F.R. § 122.34(b)(1)(i). The "Illicit Discharge Detection and Elimination" measure requires regulated small MS4s to "[i]nform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste." 40 C.F.R. § 122.34(b)(3)(ii)(D).

The Municipal Petitioners argue that the First Amendment prohibits EPA from compelling small MS4s to communicate messages that they might not otherwise wish to deliver. They further contend that EPA's interpretation of § 402(p) as authorizing these Measures does not warrant Chevron deference because it raises serious constitutional issues, but that even if deference were given, the resulting rule is unconstitutional because neither Congress nor EPA may dictate the speech of MS4s. They contend that municipalities are protected by the First Amendment, Pacific Gas & Elec. v. Public Utilities Comm'n, 475 U.S. 1, 8, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) ("Corporations and other associations, like individuals, contribute to the [discourse] that the First Amendment seeks to foster...."), which applies as much to compelled statements of "fact" as to those of "opinion." Riley v. Nat'l Fed. of the Blind, 487 U.S. 781, 797-98, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988).

We conclude that the purpose of the challenged provisions is legitimate and consistent with the regulatory goals of the overall scheme of the Clean Water Act, cf. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 476, 117 S.Ct. 2130, 138 L.Ed.2d 585 (1997), and does not offend the First Amendment.36 The State may not constitutionally require an individual to disseminate an ideological message, Wooley v. Maynard, 430 U.S. 705, 713, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), but requiring a provider of storm sewers that discharge into national waters to educate the public about the impacts of storm water discharge on water bodies and to inform affected parties, including the public, about the hazards of improper waste disposal falls short of compelling such speech.37 These broad requirements do not dictate a specific message. They require appropriate educational and public information activities that need not include any specific speech at all. A regulation is facially unconstitutional only when every possible reading compels it, Meinhold v. U.S. Dep't of Def., 34 F.3d 1469, 1476 (1994),38 but this is clearly not the case here.

As in Zauderer v. Office of Disciplinary Counsel of the Sup.Ct. of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), where the Supreme Court upheld certain disclosure requirements in attorney advertising, "[t]he interests at stake in this case are not of the same order as those discussed in Wooley [invalidating a law requiring that drivers display the motto "Live Free or Die" on New Hampshire license plates] ... and Barnette [forbidding the requirement that public school students salute the flag because the State may not impose on the individual "a ceremony so touching matters of opinion and political attitude"]." Id. at 651, 63 S.Ct. 1178. EPA has not attempted to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

Informing the public about safe toxin disposal is nonideological; it involves no "compelled recitation of a message" and no "affirmation of belief." PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (upholding state law protecting petitioning in malls and noting that "Barnette is inapposite because it involved the compelled recitation of a message containing an affirmation of belief"). It does not prohibit the MS4 from stating its own views about the proper means of managing toxic materials, or even about the Phase II Rule itself. Nor is the MS4 prevented from identifying its dissemination of public information as required by federal law, or from making available federally produced informational materials on the subject and identifying them as such.

Even if such a loosely defined public information requirement could be read as compelling speech, the regulation resembles another regulation that the Supreme Court has held permissible. In Glickman, 521 U.S. 457, 117 S.Ct. 2130, 138 L.Ed.2d 585, the Court upheld a generic advertising assessment promulgated by the Department of Agriculture on behalf of California tree fruit growers because the order was consistent with an overall regulatory program that did not abridge protected speech:

Three characteristics of the regulatory scheme at issue distinguish it from laws that we have found to abridge the freedom of speech protected by the First Amendment. First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views. Indeed, since all of the respondents are engaged in the business of marketing California nectarines, plums, and peaches, it is fair to presume that they agree with the central message of the speech that is generated by the generic program.

Id. at 469-70, 117 S.Ct. 2130 (footnotes omitted). Here, as in Glickman, the Phase II regulations impose no restraint on the freedom of any MS4 to communicate any message to any audience. They do not compel any specific speech, nor do they compel endorsement of political or ideological views. And since all permittees are engaged in the handling of stormwater runoff that must be conveyed in reasonably unpolluted form to national waters, it is similarly fair to presume that they will agree with the central message of a public safety alert encouraging proper disposal of toxic materials.39 The Phase II regulation departs only from the second element in the Glickman analysis, because the public information requirement may compel a regulated party to engage in some speech at some time; but unlike the offensive messages in Maynard and Barnette (and even the inoffensive advertising messages at issue in Glickman) that speech is not specified by the regulation.40

The public information requirement does not impermissibly compel speech, and nothing else in the Phase II Rule offends the First Amendment.41 The Rule does not compel a recitation of a specific message, let alone an affirmation of belief. To the extent MS4s are regulated by the public information requirement, the regulation is consistent with the overall regulatory program of the Clean Water Act and the responsibilities of point source dischargers.

5. Notice and Comment on the Alternative Permit Option

The Municipal Petitioners contend that, in adopting the Alternative Permit option, EPA did not comply with the minimum notice and comment procedures required in informal rulemaking by the Administrative Procedures Act ("APA"), 5 U.S.C. § 553. The APA requires an agency to publish notice of a proposed rulemaking that includes "either the terms or substance of the proposed rule or a description of the subjects and issues involved." Id. at § 553(b)(3).

We have held that a "final regulation that varies from the proposal, even substantially, will be valid as long as it is `in character with the original proposal and a logical outgrowth of the notice and comments.'" Hodge v. Dalton, 107 F.3d 705, 712 (9th Cir.1997). In determining whether notice was adequate, we consider whether the complaining party should have anticipated that a particular requirement might be imposed. The test is whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule. Am. Water Works Ass'n v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994).

The Municipal Petitioners argue that the Alternative Permit option is not a logical outgrowth of EPA's proposed rule because, although numerous alternatives were discussed in the Preamble to the proposed rule, 63 Fed.Reg. at 1554-1557, the Alternative Permit option eventually adopted was not. EPA counters that the proposed rule included a supplementary alternative permitting system based on concepts similar to those in the Minimum Measures, including "simplified individual permit application requirements."42 EPA contends that the Alternative Permit option was a logical outgrowth of the comments it received on the proposal expressing concern that the Minimum Measures might violate the Tenth Amendment. 64 Fed.Reg. at 68,765.

The Alternative Permit option passes the Hodge test. The proposed rule suggested an individualized permitting option to be developed in response to comments during the notice and comment period. The Alternative option contains no elements that were not part of the original rule, even if they are configured differently in the final rule. Petitioners had, and took, their opportunity to object to the aspects of the Rule that they did not support in their comments on the Minimum Measures.

B. The General Permit Option and Notices of Intent

The Environmental Petitioners contend that the general permitting scheme of the Phase II Rule allows regulated small MS4s to design stormwater pollution control programs without adequate regulatory and public oversight, and that it contravenes the Clean Water Act because it does not require EPA to review the content of dischargers' notices of intent and does not contain express requirements for public participation in the NPDES permitting process.

In reviewing a federal administrative agency's interpretation of a statute it administers, we first determine whether Congress has expressed its intent unambiguously on the question before the court. See Chevron, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."). "If, instead, Congress has left a gap for the administrative agency to fill, we proceed to step two. At step two, we must uphold the administrative regulation unless it is arbitrary, capricious, or manifestly contrary to the statute." Defenders of Wildlife v. Browner, 191 F.3d 1159, 1162, amended by 197 F.3d 1035 (9th Cir.1999) (citations and internal quotations omitted).

We conclude that the Phase II General Permit option violates the Clean Water Act's requirement that permits for discharges "require controls to reduce the discharge of pollutants to the maximum extent practicable," 33 U.S.C. § 1342(p)(3)(B)(iii), because the Phase II rule does not provide for review of notices of intent. We also conclude that the Phase II General Permit option violates the Clean Water Act because it does not contain express requirements for public participation in the NPDES permitting process. We remand these aspects of the Phase II Rule.

1. Phase II General Permits and Notices of Intent

Primary responsibility for enforcement of the requirements of the Clean Water Act is vested in the Administrator of the EPA. 33 U.S.C. § 1251(d); see also 33 U.S.C. § 1361(a) ("The Administrator [of EPA] is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter."). The Clean Water Act renders illegal any discharge of pollutants not specifically authorized by a permit. 33 U.S.C. § 1311(a) ("Except in compliance with this section and [other sections detailing permitting requirements] of this title, the discharge of any pollutant by any person shall be unlawful."). Under the Phase II Rule, dischargers may apply for an individualized permit with the relevant permitting authority, or may file a "Notice of Intent" ("NOI") to seek coverage under a "general permit." 40 C.F.R. § 122.33(b).

A general permit is a tool by which EPA regulates a large number of similar dischargers. Under the traditional general permitting model, each general permit identifies the output limitations and tech-nology-based requirements necessary to adequately protect water quality from a class of dischargers. Those dischargers may then acquire permission to discharge under the Clean Water Act by filing NOIs, which embody each discharger's agreement to abide by the terms of the general permit. Because the NOI represents no more than a formal acceptance of terms elaborated elsewhere, EPA's approach does not require that permitting authorities review an NOI before the party who submitted the NOI is allowed to discharge. General permitting has long been recognized as a lawful means of authorizing discharges. Natural Res. Def. Council v. Costle, 568 F.2d 1369 (D.C.Cir.1977).

The Phase II general permitting scheme differs from the traditional general permitting model. The Clean Water Act requires EPA not only to ensure that operators of small MS4s comply with the general effluent limitations of the Clean Water Act, but also that operators of small MS4s "reduce the discharge of pollutants to the maximum extent practicable." 40 U.S.C. § 1342(p)(3)(B). To ensure that operators of small MS4s achieve this "maximum extent practicable" standard, the Phase II Rule requires that each NOI contain information on an individualized pollution control program that addresses each of the six general criteria specified in the Minimum Measures; thus, according to the Phase II Rule, submitting an NOI and implementing the Minimum Measures it contains "constitutes compliance with the standard of reducing pollutants to the `maximum extent practicable.'" 40 C.F.R. § 122.34(a).

Because a Phase II NOI not only conveys assent to the broad effluent limitations of the Clean Water Act, but also establishes what the discharger will do to reduce discharges to the "maximum extent practicable," the Phase II NOI crosses the threshold from being an item of procedural correspondence to being a substantive component of a regulatory regime. The text of the Rule itself acknowledges that a Phase II NOI is a permit application that is, at least in some regards, functionally equivalent to a detailed application for an individualized permit. See, e.g., 40 C.F.R. § 122.34(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 ...."). For this reason, EPA rejected the possibility of providing a "form NOI" to Phase II permittees, explaining that "[w]hat will be required on an MS4's NOI ... is more extensive than what is usually required on an NOI, so a `form' NOI for MS4s may be impractical." 64 Fed.Reg. at 68,764.

The Environmental Petitioners argue that, by allowing NPDES authorities to grant dischargers permits based on unreviewed NOIs, the Rule creates an impermissible self-regulatory system.43 Petitioners contend the Rule impermissibly fails to require that the permitting authority review an NOI to assure compliance with Clean Water Act standards, including the standard that municipal stormwater pollution be reduced to "the maximum extent practicable." 33 U.S.C. § 1342(p)(3)(B)(iii). See 40 C.F.R. § 123.35 (setting out requirements for permitting authorities, but not requiring review of NOI); 64 Fed.Reg. at 68,764 ("EPA disagrees that formal approval or disapproval by the permitting authority is needed").

EPA maintains that the Phase II permit system is fully consistent with the authorizing statute. It contends that § 402(p)(6) granted EPA flexibility in designing the Phase II "comprehensive program," and notes that while the statute does not require general permits, neither does it preclude them. EPA contends that Congress delegated the task of designing the program to EPA, and that EPA reasonably adopted a "flexible version" of the NPDES permit program to suit the unique needs of the Phase II program. It disputes that the general permit program creates "paper tigers," especially since EPA, States, and citizens may initiate enforcement actions. Finally, EPA argues that the Rule does not create a self-regulatory program, but that even if it did, nothing in § 402(p)(6) precludes such a program.

Reviewing the Phase II Rule under the first step of Chevron, we note that the plain language of § 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p), expresses unambiguously Congress's intent that EPA issue no permits to discharge from municipal storm sewers unless those permits "require controls to reduce the discharge of pollutants to the maximum extent practicable."

Phase II general permits do impose requirements that ensure that operators of small MS4s comply with many of the effluent standards of the Clean Water Act. Thus, general permits issued under Phase II will contain numerous substantive requirements, just as did the permits issued under Phase I. See 40 C.F.R. §§ 123.35 & 123.35(a) ("§ 123.35 As the NPDES Permitting Authority for regulated small MS4s, what is my role? (a) You must comply with the requirements for all NPDES permitting authorities under Parts 122, 123, 124 and 125 of this chapter."); see also 40 C.F.R. § 122.28 (outlining requirements for NPDES authorities issuing general permits). In particular, each general permit must contain provisions to require compliance with § 307(a) of the Clean Water Act, 33 U.S.C. § 1317(a), which sets the effluent limitations that are the core of the NPDES program. See 40 C.F.R. § 122.44(b)(1) ("If any applicable toxic effluent standard or prohibition ... is promulgated under section 307(a) of [the Clean Water Act] for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Director shall institute proceedings under these regulations to modify or revoke and reissue the permit....").

Every operator of a small MS4 who files an NOI under Phase II "must comply with other applicable NPDES permit requirements, standards, and conditions established in the ... general permit." See 40 C.F.R. §§ 122.34 & 122.34(f). Specifically, every operator of a small MS4 who files a Notice of Intent under Phase II must comply with the effluent standards and limitations promulgated under the Clean Water Act. See 40 C.F.R. § 122.34(f) (mandating compliance with the requirements, standards and conditions "developed consistent with the provisions of §§ 122.41 through 122.49"); see also 40 C.F.R. § 122.44 (mandating compliance with the effluent standards and limitations promulgated under the Clean Water Act).

However, while each Phase II general permit will ensure that operators of small MS4s comply with the effluent standards of the Clean Water Act, they will not "require controls to reduce the discharge of pollutants to the maximum extent practicable." According to the Phase II Rule, the operator of a small MS4 has complied with the requirement of reducing discharges to the "maximum extent practicable" when it implements its storm water management program, i.e. when it implements its Minimum Measures. 40 C.F.R. § 122.34(a). Nothing in the Phase II regulations requires that NPDES permitting authorities review these Minimum Measures to ensure that the measures that any given operator of a small MS4 has decided to undertake will in fact reduce discharges to the maximum extent practicable.44 See 40 C.F.R. § 123.35 ("As the NPDES Permitting Authority for regulated small MS4s, what is my role?"). Therefore, under the Phase II Rule, nothing prevents the operator of a small MS4 from misunderstanding or misrepresenting its own stormwater situation and proposing a set of minimum measures for itself that would reduce discharges by far less than the maximum extent practicable.

In fact, under the Phase II Rule, in order to receive the protection of a general permit, the operator of a small MS4 needs do nothing more than decide for itself what reduction in discharges would be the maximum practical reduction. No one will review that operator's decision to make sure that it was reasonable, or even good faith.45 Therefore, as the Phase II Rule stands, EPA would allow permits to issue that would do less than require controls to reduce the discharge of pollutants to the maximum extent practicable. We therefore must reject this aspect of the Phase II Rule as contrary to the clear intent of Congress. Cf. Natural Res. Def. Council, 966 F.2d at 1305 (rejecting as arbitrary and capricious a permitting system that allowed regulated industrial stormwater dischargers to "self-report" whether they needed permit coverage).

Involving regulated parties in the development of individualized stormwater pollution control programs is a laudable step consistent with the directive to consult with state and local authorities in the development of the § 402(p)(6) comprehensive program. But EPA is still required to ensure that the individual programs adopted are consistent with the law. Our holding should not prevent the Phase II general permitting program from proceeding mostly as planned. Our holding does not preclude regulated parties from designing aspects of their own storm water management programs, as contemplated under the Phase II Rule. However, storm water management programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulating entity to ensure that each such program reduces the discharge of pollutants to the maximum extent practicable. We therefore remand this aspect of the Rule.

The Environmental Petitioners contend that the Phase II Rule fails to provide public participation as required by the Clean Water Act, because the public receives neither notice nor opportunity for hearing regarding an NOI. The EPA replies on the one hand by arguing that NOIs are not "permits" and therefore are not subject to the public availability and public hearing requirements of the Clean Water Act, and on the other hand by arguing that the combination of the public involvement minimum measure, 40 C.F.R. § 122.34(b)(2), the Federal Freedom of Information Act, 5 U.S.C. § 552, and state freedom of information acts would fulfill any such requirements if NOIs were permits.

Reviewing the Phase II Rule under Chevron step one, we conclude that clear Congressional intent requires that NOIs be subject to the Clean Water Act's public availability and public hearings requirements. The Clean Water Act requires that "[a] copy of each permit application and each permit issued under [the NPDES permitting program] shall be available to the public," 33 U.S.C. § 1342(j), and that the public shall have an opportunity for a hearing before a permit application is approved, 33 U.S.C. § 1342(a)(1). Congress identified public participation rights as a critical means of advancing the goals of the Clean Water Act in its primary statement of the Act's approach and philosophy. See 33 U.S.C. § 1251(e); see also Costle v. Pacific Legal Found., 445 U.S. 198, 216, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980) (noting the "general policy of encouraging public participation is applicable to the administration of the NPDES permit program"). EPA has acknowledged that technical issues relating to the issuance of NPDES permits should be decided in "the most open, accessible forum possible, and at a stage where the [permitting authority] has the greatest flexibility to make appropriate modifications to the permit." 44 Fed.Reg. 32,854, 32,885 (Jun. 7, 1979).

As we noted above, under the Phase II Rule it is the NOIs, and not the general permits, that contain the substantive information about how the operator of a small MS4 will reduce discharges to the maximum extent practicable. Under the Phase II Rule, NOIs are functionally equivalent to the permit applications Congress envisioned when it created the Clean Water Act's public availability and public hearing requirements. Thus, if the Phase II Rule does not make NOIs "available to the public," and does not provide for public hearings on NOIs, the Phase II Rule violates the clear intent of Congress. EPA's first argument — that NOIs are not subject to the public availability and public hearings requirements of the Clean Water Act — therefore fails.

We therefore reject the Phase II Rule as contrary to the clear intent of Congress insofar as it does not provide for public hearings on NOIs as required by 33 U.S.C. § 1342(a)(1). However, Congress has not directly addressed the question of what would constitute an NOI being "available to the public" as required by 33 U.S.C. § 1342(j). Under Chevron step two, we must defer to EPA's interpretation of "available to the public" unless it is arbitrary, capricious, or manifestly contrary to the statute.

EPA argues that the NOIs are "available to the public" as a result of the combined effects of the public participation minimum measures, and of federal and state freedom of information acts. This argument is unconvincing. First, the public participation Minimum Measure only requires dischargers to design a program minimally consistent with State, Tribal and local requirements. 40 C.F.R. § 122.34(b)(2). Second, the federal Freedom of Information Act only applies to documents that are actually in EPA's possession, not to documents that are in the possession of state or tribal NPDES authorities, see 40 C.F.R. § 2 (providing EPA's policy for releasing documents under the federal Freedom of Information Act), and nothing in the Phase II Rule provides that EPA obtain possession of every NOI that is submitted to a NPDES permitting authority. See 40 C.F.R. § 123.41(a) (making information provided to state NPDES authorities available to EPA only upon request). Thus, under the Phase II Rule, NOIs will only "be available to the public" subject to the vagaries of state and local freedom of information acts. We conclude that EPA's interpretation of 33 U.S.C. § 1342(j), as embodied in the provisions of the Phase II Rule providing for the public availability of NOIs, is manifestly contrary to the Clean Water Act, which contemplates greater scope, greater certainty, and greater uniformity of public availability than the Phase II Rule provides. We therefore reject this aspect of the Phase II Rule.

In sum, we remand the Phase II Rule to EPA on the grounds that the Phase II Rule must provide for the review of NOIs to ensure that those NOIs "require controls" upon operators of small MS4s "that reduce the discharge of pollutants to the maximum extent practicable," 33 U.S.C. § 1342(p)(3)(B)(iii), must provide for public hearings on NOIs before any discharge is authorized as required by 33 U.S.C. § 1342(a)(1), and must provide for the public availability of NOIs as required by 33 U.S.C. § 1342(j).

We reject the Environmental Petitioners' contention that EPA's failure to designate for Phase II regulation serious sources of stormwater pollution, including certain industrial ("Group A") sources and forest roads, was arbitrary and capricious. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).46

In addition to the small MS4s and construction sites ultimately designated for regulation under the Phase II Rule, EPA evaluated a variety of other point-source discharge categories for potential Phase II regulation. One group of dischargers (referred to as the "Group A" facilities) included sources that "are very similar, or identical" to regulated stormwater discharges associated with industrial activity that were not designated for Phase I regulation for administrative reasons unrelated to their environmental impacts.47 64 Fed. Reg. at 68,779. EPA estimates that Group A includes approximately 100,000 facilities, including auxiliary facilities and secondary activities ("e.g., maintenance of construction equipment and vehicles, local trucking for an unregulated facility such as a grocery store," id.) and facilities intentionally omitted from Phase I designation ("e.g., publicly owned treatment works with a design flow of less than 1 million gallons per day, landfills that have not received industrial waste," id.).

The Environmental Petitioners contend that EPA should have designated the Group A facilities for categorical Phase II regulation after finding (1) that stormwater discharges from these facilities are the same as those from the industrial sources regulated under Phase I, and (2) that such discharges may cause "adverse water quality impacts." Id. Petitioners argue that these findings, and EPA's failure to provide individualized analysis regarding whether any specific source category within Group A requires regulation, render EPA's decision not to regulate any of these sources under the Rule arbitrary and capricious. They maintain that EPA's "line-drawing," which regulates some pollution sources but leaves nearly identical sources unregulated without any persuasive rationale, is necessarily arbitrary and capricious. See Natural Res. Def. Council, 966 F.2d at 1306 (EPA's decision not to regulate construction sites smaller than five acres was arbitrary when EPA provided no data to justify the five-acre threshold and admitted that unregulated sites could have significant water quality impacts).

Petitioners argue that § 402(p)(6) at least required EPA to make findings with respect to individual Group A categories, and that data collected from Phase I permit applications could be used to evaluate the pollutant potential of the identical Group A sources. They contend that these findings should have sufficed as a basis for designating at least some Group A sources, and that EPA's conclusion that it lacked adequate nationwide data upon which to designate any of these sources is not supported by the record evidence. Comparing EPA's identification of the serious polluting potential of some of these sources with its statutory mandate under § 402(p)(6) "to protect water quality," they argue that EPA fails even the forgiving standard of arbitrary and capricious review in that it has "offered an explanation for its decision that runs counter to the evidence before [it]", and "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." See Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856.

EPA maintains that it considered Group A facilities' similarity to already regulated sources as only one of several criteria that it used in designating sources for regulation under Phase II, 64 Fed.Reg. at 68,780, and that sources that appear "similarly situated" under one criterion are not necessarily similarly situated under all. EPA asserts that nothing in § 402(p)(6) implied a responsibility to make individualized findings regarding each Group A subcategory, and it maintains that it simply lacked sufficient data to support nationwide designation of the Group A facilities. EPA notes that, after failing to receive requested comment providing such data, it proposed instead "to protect water quality" by allowing regional regulation of problem Group A facilities under the residual designation authority. EPA contends that agencies must be afforded deference in determining the data necessary to support regulatory decisionmaking and that it reasonably determined the quantum of data it would need to support the designation of additional sources on a nationwide basis. See Sierra Club v. EPA, 167 F.3d 658, 662 (D.C.Cir.1999).

We conclude that sufficient evidence supports EPA's decision not to designate Group A sources on a nationwide basis, and instead to establish local and regional designation authority to account for these sources and protect water quality. Although we are troubled by the purely administrative basis for the distinction between facilities regulated under the Phase I Rule and the Group A facilities that remain unregulated under Phase II,48 EPA's choice of the Phase I standard for designation is not the issue before us. Before us is whether EPA acted arbitrarily in declining to designate the Group A sources on a nationwide basis under the Phase II Rule, and we cannot say that it did.

EPA has articulated a rational connection between record facts indicating insufficient data to categorically regulate Group A facilities and its corresponding conclusion not to do so, and we defer to that decision. See Washington v. Daley, 173 F.3d 1158, 1169 (9th Cir.1999). In the text of the Rule, EPA explains that the process behind its decision not to nationally designate Group A sources for Phase II regulation focused not only on the likelihood of contamination from a source category but also on the sufficiency of national data about each category and whether pollution concerns were adequately addressed by existing environmental regulations.49 We cannot say that EPA relied on factors Congress had not intended it to consider, that it failed to consider an important aspect of the problem, or that its rationale is implausible. See Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856. Nor did EPA's decision run counter to the evidence before it. Id. The Environmental Petitioners allege that its decision not to regulate Group A facilities runs counter to evidence that similar sources are highly polluting, but as EPA considered evidence beyond those similarities that persuaded it not to regulate, we cannot say that EPA's decision is unsupported by the record. Nothing in § 402(p)(6) unambiguously requires EPA to evaluate the Group A source categories individually, and we defer to EPA's interpretation of the statute it is charged with administering. See Royal Foods Co. v. RJR Holdings, 252 F.3d 1102, 1106 (9th Cir.2001).

The Environmental Petitioners also contend that EPA arbitrarily failed to regulate forest roads under the Rule despite clear evidence in the record documenting the need for stormwater pollution control from these roads. Petitioners again contend that this agency action is arbitrary, because EPA has offered an explanation for its decision that runs counter to the evidence before it.

Petitioners point to EPA's own conclusion that forest roads "are considered to be the major source of erosion from forested lands, contributing up to 90 percent of the total sediment production from forestry operations."50 They note that both unimproved forest roads and construction sites create large expanses of non-vegetated soil subject to stormwater erosion, and argue that construction site data thus also supports regulation of forest roads. Petitioners observe that EPA has cited no contrary evidence indicating that forest roads are not sources of stormwater pollutant discharges to U.S. waters, and they argue that Phase II regulation is necessary "to protect water quality," because proper planning and road design can minimize erosion and prevent stream sedimentation. Petitioners note that this court has previously held that, in the absence of such "supportable facts," EPA is not entitled to the usual assumption that it has "rationally exercised the duties delegated to it by Congress." Natural Res. Def. Council, 966 F.2d at 1305.

EPA maintains that this argument is time-barred by Clean Water Act § 509(b)(1), 33 U.S.C. § 1369(b)(1) (providing that "application for review shall be made within 120 days from the date of [agency action]"). EPA promulgated silviculture regulations in 1976 that exclude from NPDES permit requirements silvicultural activities that EPA has determined constitute non-point source activities, including "surface drainage, or road construction and maintenance from which there is natural runoff." 40 C.F.R. § 122.27(b)(1). EPA notes that Petitioners missed yet another opportunity to seek review of EPA's regulation of silvicultural activities when EPA recently considered51 but ultimately declined52 to change the classification of forest roads to point sources subject to NPDES regulation.53

EPA's line of argument might be more persuasive if the Environmental Petitioners' contention could only be understood as a direct challenge to its 1976 silviculture (forestry) regulations, but this is not the case. The Petitioners assert that EPA's decision not to regulate forest roads under the Phase II rule is arbitrary, because EPA made the decision while aware that forest roads pose a recognized threat to water quality.

The fact that EPA exempted forest roads from NPDES permit requirements in 1976, 40 C.F.R. § 122.27(b), does not resolve the question whether EPA should have addressed forest roads in its "comprehensive program ... to protect water quality" under § 402(p)(6), because § 402(p)(6) does not require that the "comprehensive program" be limited to the use of NPDES permits. Indeed, as EPA argued in response to the Municipal Petitioners' claim that it lacked statutory authority to regulate Phase II dischargers through the NPDES permitting program, EPA was "free to adopt any regulatory program that was `comprehensive'" and included the other requisite elements (that the program be based on the § 402(p)(5) studies, etc.). EPA was not precluded from addressing forest roads in the Phase II program simply because forest roads are currently exempt from NPDES permitting requirements.

However, we cannot say that EPA's decision not to designate forest roads for Phase II regulation was arbitrary, because EPA was asked by Congress to promulgate the Phase II Rule under the section of the Clean Water Act demarcated for regulating "Municipal and Industrial Stormwater Discharges." 33 U.S.C. § 1342(p). The Phase II "comprehensive program" was thus specifically intended to address stormwater pollution from industrial and municipal sources, not agriculture. That EPA did not regulate forest roads under this program is consistent with its policy practice of treating silviculture as an agricultural, rather than an industrial, activity. This categorical distinction is supported in the text of the Clean Water Act, see, e.g., id. § 1314(e)-(f) (treating separately best management practices for industry, § 1314(e), and pollution control for "agricultural and silvicultural activities," § 1314(f)(A)).54 EPA's interpretation of the statutory provision it is charged with administering is entitled to deference.55 See Royal Foods Co., 252 F.3d at 1106.

The Environmental Petitioners argue that this aspect of the Rule is arbitrary because EPA "offered an explanation for its decision that runs counter to the evidence before[it]," Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856, since EPA knew at the time of the rulemaking that forest roads threaten water quality.56 We agree that EPA was probably aware of the forest road sedimentation problem at the time of the rulemaking, just as it was aware of many other sources of water pollution that it also declined to regulate under the Phase II Rule, including agricultural activities responsible for even more serious water quality impairments of rivers and lakes.57 But EPA's awareness of the forest road sedimentation problem does not lead to the conclusion that the Phase II rulemaking runs counter to record evidence, when the evidence in question is only tangentially relevant to the Phase II regulatory agenda.

In accordance with its instructions from Congress, EPA based its decision about which sources to designate on the available evidence related to municipal and industrial sources of stormwater discharges. The Petitioners have offered no evidence, either in this appeal or during the long Phase II rulemaking process, that forest roads should be considered municipal or industrial enterprises.58 Thus, available evidence about forest roads was irrelevant to this rulemaking, and cannot serve as a basis for asserting that EPA acted capriciously or arbitrarily.

The American Forestry & Paper Association (AF & PA), a national trade association representing the forest, pulp, paperboard, and wood products industry, is one of the two Industry Petitioners asserting the remaining claims.59 Before considering these challenges, however, we consider whether AF & PA has standing to raise them.

EPA argues that AF & PA lacks standing because it cannot show that it represents entities that suffer a cognizable injury under the Phase II Rule as promulgated. EPA argues that the interests of AF & PA entities might have supported standing had EPA decided to regulate forest roads as Phase II stormwater dischargers, but since EPA declined to do so, none of AF & PA's members are currently subject to the Rule. AF & PA contends that its members have a cognizable legal interest in the Rule because they risk becoming subject to regulation at any future time under the continuing designation authority.

We agree that AF & PA lacks standing. A claimant meeting Article III standing requirements must show that "(1) it has suffered an `injury in fact' ...; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Standing requires an injury that is "actual or imminent, not `conjectural or hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). AF & PA's interest in avoiding future regulation of forest roads is not actually or imminently threatened by any potential result in this case. No ripe claim about misuse of the residual authority to regulate forest road discharge, or any other kind of discharge, is before the court. Should members of AF & PA become subject to Phase II regulation through subsequent administrative action, it will have standing to challenge those actions at that time. In the meanwhile, we proceed to the merits of the remaining claims on behalf of AF & PA's co-petitioner, the National Association of Home Builders, which has established its standing to raise them.

E. Consultation with State and Local Officials

The Industry Petitioners contend that EPA failed to consult with the States on the Phase II Rule as required by § 402(p)(5), which instructs EPA to conduct studies "in consultation with the States," and § 402(p)(6), which instructs the Administrator to issue regulations based on these studies "in consultation with State and local officials." 33 U.S.C. §§ 1342(p)(5)-(6). We conclude that EPA satisfied its statutory duty of consultation. See Marsh, 490 U.S. at 378, 109 S.Ct. 1851.

Petitioners concede several instances in which EPA circulated drafts of the Phase II Rule to state and local authorities, but argue that these consultations were meaningless because (1) the reports were circulated too far in advance of the actual rulemaking, (2) the rulemaking wrongfully proceeded based on other sources of input, (3) standard APA notice and comment procedures could not suffice because Congress must have intended something more when it added the consultation requirements to the language of § 402, and (4) consultation at the final stage of rulemaking was inadequate because comment was sought on the final report only after it had been submitted to Congress and the Phase II Rule had been promulgated. Petitioners provide examples of state feedback that allegedly went unheeded by EPA in its promulgation of the final Rule.

EPA maintains that it consulted extensively with States and localities in developing the Phase II Rule, discharging its obligations under §§ 402(p)(5) & (6). EPA contends that the comments Petitioners cite as unheeded by EPA demonstrate that EPA did consult with States concerning the Rule, even if some States did not concur in EPA's ultimate conclusion, and that the final rule adopted a good measure of the flexibility sought by state representatives. EPA argues that Industry Petitioners cannot complain that consultation was inadequate simply because it did not result in the adoption of Petitioners' preferred views.

EPA also disputes Petitioners' allegation that while EPA did comply with the terms of the 1999 Appropriations Act (requiring EPA to defend the proposed Phase II Rule before Congress and then publish the final report for public comment), it demonstrated its failure to adequately consult by publishing the report for public comment after the Phase II Rule had been formally promulgated, rendering any subsequent public comment meaningless. EPA counters that these actions do not indi