II 109th CONGRESS 2d Session S. 4101 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.

1.

Short title

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

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. .

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). .

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. .

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. .

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. .