109 HR 5558 IH: Stormwater Enforcement and Permitting U.S. House of Representatives 2006-06-08 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 109th CONGRESS 2d Session H. R. 5558 IN THE HOUSE OF REPRESENTATIVES June 8, 2006 Mr. Duncan (for himself, Mr. Young of Alaska, Mr. Mica, Mr. Baker, Mr. DeFazio, Mr. Gary G. Miller of California, Ms. Berkley, Mr. Shuster, Mr. Boozman, Mr. Westmoreland, Mr. Boustany, Mr. Peterson of Minnesota, Mr. Akin, Mr. Davis of Tennessee, Mr. Scott of Georgia, Mr. Neugebauer, Mrs. Blackburn, Ms. Harris, and Mr. Sessions) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To amend the Federal Water Pollution Control Act to provide more effective permitting and enforcement mechanisms for stormwater discharges associated with residential construction activity.

1.

Short title

This Act may be cited as the Stormwater Enforcement and Permitting Act of 2006.

2.

Greater specificity in information requests and opportunity for corrective action

(a)

Inspections, monitoring, and entry

Section 308(a)(A)(v) of the Federal Water Pollution Act (33 U.S.C. 1318(a)(A)(v)) is amended— (1)by striking other information as he and inserting other information pertaining to such point source as the Administrator; and (2)by striking reasonably require and inserting reasonably request within 90 days of the date of the request or such shorter time period as the Administrator determines is necessary to address an imminent and substantial endangerment to public health or welfare or the environment. (b)

Corrective action for residential construction sites

Section 309 of such Act (33 U.S.C. 1319) is amended by adding at the end the following: (h)

Corrective action for residential construction sites

(1)

In general

In the course of an inspection of a site at which a residential construction activity is being or will be carried out or based on information obtained under section 308(a) relating to such a site, if the Administrator or the authorized representative of the Administrator discovers a violation of a permit condition relating to such site that has not resulted in a discharge of stormwater and provides written notice of such violation to the operator of such site, the Administrator or such representative shall provide the operator a reasonable opportunity to correct the identified violation before initiation of an enforcement action. (2)

Subsequent violation

If the Administrator or the authorized representative of the Administrator subsequently inspects or requests information regarding a residential construction site for which an opportunity for corrective action was provided under paragraph (1) and discovers a violation of the same permit condition that was corrected under paragraph (1) or for which such opportunity to correct was provided, the operator of such site shall not be provided a further opportunity to correct under this subsection before initiation of an enforcement action. (3)

Limitation on authority of administrator

The Administrator shall not exercise any authority under this section (other than under this subsection) during the period that the operator of a residential construction site is provided an opportunity to correct a violation of a permit condition that has not resulted in the discharge of stormwater. . (c)

Limitation on actions during opportunity to correct

Section 309(g)(6)(A) of such Act (33 U.S.C. 1319(g)(6)(A)) is amended— (1)by striking or at the end of clause (ii); (2)by inserting or after the comma at the end of clause (iii); and (3)by inserting after clause (iii) the following: (iv)for which the Administrator or the authorized representative of the Administrator has provided the operator of a residential construction site an opportunity to correct under subsection (h), .

3.

Paperwork limitations for residential construction sites

Section 402(l) of the Federal Water Pollution Control Act (33 U.S.C. 1342(l)) is amended by adding at the end the following: (3)

Stormwater runoff from residential construction sites

(A)

In general

The Administrator shall not require a permit, nor shall the Administrator directly or indirectly require any State to require a permit, under this section for stormwater runoff from any site at which a residential construction activity is being or will be carried out if— (i)such runoff enters a municipal separate storm sewer system that is covered by a permit to which subsection (p) applies and the operator of such site is in compliance with requirements imposed by the permittee for such system to control stormwater runoff; or (ii)such site, during the period of the residential construction activity, has minimal potential for soil erosion caused by rainfall or overland flow due to soil type, geology, amount and force of precipitation, and other conditions. (B)

Minimal potential for soil erosion defined

For purposes of this paragraph, a residential construction site has minimal potential for soil erosion if the erosivity factor for the site during the period of the residential construction activity is less than 5 as calculated based on the latest version of the revised universal soil loss equation developed by the Department of Agriculture, unless the Administrator determines, after notice and an opportunity for public comment, that some other technical standard is more appropriate to measure the erosivity value of residential construction sites and adopts, by regulation, such standard for purposes of this paragraph. .

4.

Federal enforcement

Section 402(p) of the Federal Water Pollution Control Act (33 U.S.C. 1342(p)) is amended by adding at the end the following: (7)

Federal enforcement of state permits authorizing stormwater discharges from residential construction activity

(A)

In general

Notwithstanding subsection (i), the Administrator shall not exercise authority under section 309 with respect to a permit, issued by a State under a program approved under subsection (b) and authorizing a stormwater discharge from a site at which a residential construction activity is being or will be carried out, unless one of the following conditions applies: (i)The Administrator determines that such a discharge has flowed or will flow across a State line or onto a Federal facility or Indian tribal lands. (ii)Such permit was issued under a State program that the Administrator has suspended or withdrawn under subsection (c). (iii)After taking into consideration all of the terms, conditions, and requirements of such permit, the Administrator determines that— (I)a stormwater discharge from such site results in imminent and substantial endangerment to public health or welfare or the environment; and (II)additional actions are likely to be necessary to remove such endangerment. (B)

Limitation on transfers to states

If the Administrator receives or is awarded a fine or penalty for violation of a permit issued under this section by a State for a site on which a residential construction activity is being or will be carried out through an action brought under section 309 based on any of the conditions set forth in clauses (i), (ii), and (iii) of subparagraph (A), the Administrator may not transfer, disburse, allocate, or otherwise pay all or any part of such fine or penalty to the State that issued the permit. .

5.

Notification to point source operators at residential construction sites

Section 402(p) of the Federal Water Pollution Control Act (33 U.S.C. 1342(p)) is further amended by adding at the end the following: (8)

Notification of permit requirements for stormwater discharges from residential construction sites

(A)

Stormwater informational pamphlet program

Not later than 180 days after the date of enactment of this paragraph, the Administrator shall establish, by regulation, a program that will provide for development, and distribution to operators of residential construction sites, of an informational pamphlet. (B)

Pamphlet contents

Under the program, operators of residential construction sites shall receive an informational pamphlet explaining, at a minimum, permitting requirements under this section for stormwater discharges from a site at which a residential construction activity is being or will be carried out (including the permitting requirements of subsections (a) and (b) and this subsection and any applicable regulations issued to carry out this section) and fines and penalties that may arise from violations of such requirements. The pamphlet shall also include contact information for appropriate permitting authorities. (C)

Deadline for pamphlet development

Under the program— (i)the pamphlet or pamphlets shall be developed for distribution not later than 180 days after the date of the issuance of the regulation establishing the program; (ii)operators of residential construction sites shall be informed of the availability of the pamphlets; and (iii)a pamphlet shall be given to an operator of a residential construction site at the earliest appropriate point in the process under which the operator is seeking approval from a local government to carry out the residential construction activity. (D)

Consultation

The Administrator shall consult with State and interstate water pollution control administrators and other affected interests in establishing the program. .

6.

General permits

Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is further amended by adding at the end the following: (r)

General permits on a state, regional, or nationwide basis

(1)

In general

In carrying out responsibilities and functions of the Administrator or a State under a program approved under subsection (b) relating to the discharge of pollutants under this section, the Administrator or the State may issue a general permit on a State, regional, or nationwide basis to cover any category of discharges, sludge use, disposal practices, or facilities. (2)

General permit term

No general permit issued under this section shall be for a period of more than 5 years after the date of its issuance. (3)

Notice

Before issuing a general permit under this section, the Administrator or State shall provide to the public notice and opportunity to comment on such permit for a period of 45 days. (4)

Review not required

The Administrator or State is not required to specifically review, approve, or provide notice and an opportunity for a public hearing and comment on, any application for a discharge under a general permit issued under this section. (5)

Effective period for preexisting general permits

Any general permit issued under this section by the Administrator or a State before the date of enactment of this subsection shall remain in effect under the terms and conditions in effect on the date of its issuance. .

7.

Definitions

Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) is amended by adding at the end the following: (25)

Residential construction activity

The term residential construction activity means a construction activity associated with the development and construction of housing of any type, including structures accessory or appurtenant thereto and any facilities or infrastructure necessary to serve such housing. (26)

Operator

The term operator means, as used with respect to a site at which a residential construction activity is being or will be carried out, a person, including a governmental entity, that— (A)has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications; or (B)has day-to-day operational control over the construction activity that is necessary to ensure compliance with any applicable permit conditions and other regulatory requirements under this Act. .