[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 4101 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 4101

   To amend the Federal Water Pollution Control Act to provide more 
    effective permitting and enforcement mechanisms for stormwater 
     discharges associated with residential construction activity.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 7, 2006

Mr. Inhofe (for himself and Mr. Carper) introduced the following bill; 
 which was read twice and referred to the Committee on Environment and 
                              Public Works

_______________________________________________________________________

                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

SEC. 2. 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 to the housing and any facilities or infrastructure 
        necessary to serve the housing).
            ``(26) Operator.--The term `operator' means, 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.''.

SEC. 3. GREATER SPECIFICITY IN INFORMATION REQUESTS AND OPPORTUNITY FOR 
              CORRECTIVE ACTION.

    (a) Inspections, Monitoring, and Entry.--Section 308(a)(4) of the 
Federal Water Pollution Control Act (33 U.S.C. 1318(a)(4)) is amended--
            (1) in subparagraph (A), by striking ``and'' at the end;
            (2) in subparagraph (B), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
                    ``(C) for purposes of obtaining information under 
                subparagraph (A), the Administrator shall specify each 
                point source for which information is sought if the 
                point source is associated with residential 
                construction activity.''.
    (b) Corrective Action for Residential Construction Sites.--Section 
309 of the Federal Water Pollution Control Act (33 U.S.C. 1319) is 
amended by adding at the end the following:
    ``(h) Corrective Action for Residential Construction Sites.--
            ``(1) Corrective action.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), 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 relating to such a site, under section 308(a), 
                if the Administrator or an authorized representative of 
                the Administrator discovers any violation of a permit 
                condition relating to the site that may be rectified by 
                modifying, revising, or supplementing records or 
                paperwork, the Administrator or representative shall 
                provide the operator with written notification of the 
                basis for the violation, including specific measures to 
                achieve compliance and a reasonable opportunity to 
                correct any identified violation, before the exercise 
                of any authority under this section.
                    ``(B) Exceptions.--An opportunity described in 
                subparagraph (A) shall not be provided to--
                            ``(i) the operator of any residential 
                        construction site that was required, and 
                        subsequently failed, to obtain coverage under a 
                        permit issued under section 402(a); or
                            ``(ii) a record or paperwork violation that 
                        resulted in a violation of a water quality 
                        standard adopted under section 303.
            ``(2) Subsequent violation.--If the Administrator or an 
        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)(A) and discovers a 
        violation of the same permit condition that was corrected under 
        paragraph (1)(A) or for which an opportunity to correct was 
        provided, the operator of the site shall not be provided a 
        further opportunity to correct the violation under this 
        subsection before initiation of an enforcement action.
            ``(3) Limitation on authority of administrator.--If during 
        any subsequent inspection, an operator of a residential 
        construction site is found to not be in compliance after 
        receiving a notification, consultation, and order to comply 
        from the Administrator in accordance with paragraph (1)(A), the 
        Administrator may exercise any authority under this section 
        with respect to the operator and construction site.''.
    (c) Limitation on Actions During Opportunity To Correct.--Section 
309(g)(6) of the Federal Water Pollution Control Act (33 U.S.C. 
1319(g)(6)) is amended by striking subparagraph (A) and inserting the 
following:
                    ``(A) Limitation on actions under other sections.--
                            ``(i) In general.--Except as provided in 
                        clause (ii), action taken by the Administrator 
                        or the Secretary, as the case may be, under 
                        this subsection shall not affect or limit the 
                        authority of the Administrator or Secretary to 
                        enforce any provision of this Act.
                            ``(ii) Exceptions.--A violation shall not 
                        be the subject of a civil penalty action under 
                        subsection (d), section 311(b), or section 505 
                        if--
                                    ``(I) the Administrator or the 
                                Secretary has commenced and is 
                                diligently prosecuting an enforcement 
                                action under this subsection with 
                                respect to the violation;
                                    ``(II) a State has commenced and is 
                                diligently prosecuting an enforcement 
                                action under a State law comparable to 
                                this subsection with respect to the 
                                violation;
                                    ``(III) the Administrator, the 
                                Secretary, or the State has issued a 
                                final order with respect to the 
                                violation that is not subject to 
                                further judicial review and the 
                                violator has paid a penalty assessed 
                                under this subsection, or such 
                                comparable State law, as the case may 
                                be; or
                                    ``(IV) the Administrator or an 
                                authorized representative of the 
                                Administrator has provided the operator 
                                of a residential construction site an 
                                opportunity to correct the violation 
                                under subsection (h).''.

SEC. 4. 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 neither 
                require a permit, nor 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)(I) the runoff enters a municipal 
                        separate storm sewer system that is covered by 
                        a permit to which subsection (p) applies; and
                            ``(II) the operator of the site is in 
                        compliance with requirements imposed by the 
                        permittee for the system to control stormwater 
                        runoff; or
                            ``(ii) the site, during the period of the 
                        residential construction activity, has minimal 
                        potential for soil erosion caused by rainfall 
                        or overland flow because of soil type, geology, 
                        quantity and force of precipitation, and other 
                        conditions as calculated in accordance with 
                        subparagraph (B).
                    ``(B) Minimal potential for soil erosion.--For the 
                purpose of this paragraph, a residential construction 
                site shall be considered to have minimal potential for 
                soil erosion if the erosivity factor for the site 
                during the period of 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.''.

SEC. 5. FEDERAL ENFORCEMENT; NOTIFICATION TO POINT SOURCE OPERATORS AT 
              RESIDENTIAL CONSTRUCTION SITE.

    (a) 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) Governing state permit and regulations.--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, 
                the exercise by the Administrator of authority under 
                section 309 shall be--
                            ``(i) in coordination with the State that 
                        issued the applicable permit to be enforced; 
                        and
                            ``(ii) limited to enforcement of--
                                    ``(I) the terms and conditions of 
                                the permit and any implementing 
                                regulations promulgated by the State; 
                                and
                                    ``(II) any enforcement policy, 
                                protocol, or practice adopted or 
                                implemented by the State.
                    ``(B) No effect on authority.--
                            ``(i) In general.--Nothing in this section 
                        affects any authority of the Administrator 
                        under section 308, including the authority to 
                        inspect and enter a site at which a residential 
                        construction activity is being or will be 
                        carried out, or otherwise investigate a 
                        potential violation of a permit issued under 
                        subsection (b).
                            ``(ii) Violation of permit.--Violation of a 
                        permit authorizing a stormwater discharge from 
                        a site described in clause (i) based on 
                        information obtained by the Administrator under 
                        section 308 may result in the exercise of any 
                        authority of the Administrator under section 
                        309.
                    ``(C) Limitation on transfers to states.--If, as a 
                result of any action brought under section 309, 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 and for which 
                the exercise of authority under section 309 was in 
                accordance with subparagraph (A), and if the State that 
                issued the permit does not participate in the action, 
                the Administrator may not transfer, disburse, allocate, 
                or otherwise pay all or any part of the fine or penalty 
                to the State.''.
    (b) 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)) (as amended by subsection (a)) is 
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 that--
                            ``(i) explains, 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--
                                    ``(I) the permitting requirements 
                                of subsections (a) and (b) and this 
                                subsection and any applicable 
                                regulations promulgated to carry out 
                                this section; and
                                    ``(II) fines and penalties that may 
                                arise from violations of those 
                                requirements; and
                            ``(ii) includes contact information for 
                        appropriate permitting authorities.
                    ``(C) Deadline for pamphlet development.--Under the 
                program--
                            ``(i) a pamphlet shall be developed for 
                        distribution not later than 180 days after the 
                        date of promulgation of the regulations 
                        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 a 
                        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.''.

SEC. 6. GENERAL PERMITS.

    Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 
1342) is 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 
        beginning on the date of issuance of the general permit.
            ``(3) Notice.--Before issuing a general permit under this 
        section, the Administrator or a State shall provide to the 
        public notice and opportunity to comment on the general permit 
        for a period of not less than 45 days.
            ``(4) Review not required.--The Administrator or a State 
        shall not be 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 issuance of the general 
        permit.''.
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