Stormwater Permits: Status of EPA’s Regulatory Program

Stormwater Permits: Status of EPA’s

Regulatory Program

name redacted

Specialist in Resources and Environmental Policy

November 28, 2016

Congressional Research Service

7-....

www.crs.gov

97-290

Stormwater Permits: Status of EPA’s Regulatory Program

Summary

The Environmental Protection Agency (EPA) and states implement a federally mandated program

for controlling stormwater discharges from industrial facilities and municipalities. Large cities

and most industry sources are subject to rules issued in 1990 (Phase I rules), and EPA issued

permit rules to cover smaller cities and other industrial sources and construction sites in 1999

(Phase II rules). Because of the large number of affected sources and deadline changes that led to

confusion, numerous questions have arisen about this program. Impacts and costs of the

program’s requirements, especially on cities, are a continuing concern.

The 109th Congress enacted omnibus energy legislation (P.L. 109-58, the Energy Policy Act of

2005) that included a provision giving the oil and gas industry regulatory relief from some

stormwater control requirements. In 2008, a federal court vacated an EPA rule implementing this

provision. EPA intends to issue a revised rule that repeals the one that was vacated by the court

and codifies the statutory exemption in P.L. 109-58, but the agency does not have a specific

schedule for doing so. In the 111th Congress, the House passed a bill that included a provision that

would repeal the exemption in P.L. 109-58, but the Senate took no action. Similar legislation has

been introduced in the 114th Congress (H.R. 1460).

Congress often looks to federal agencies to lead or test new policy approaches, a fact reflected in

legislation enacted in the 110th Congress. Section 438 of the Energy Independence and Security

Act (P.L. 110-140, EISA) requires federal agencies to implement strict stormwater runoff

requirements for development or redevelopment projects involving a federal facility in order to

reduce stormwater runoff and associated pollutant loadings. EPA has issued technical guidance

for federal agencies to use in meeting these requirements.

In 2009 the National Research Council issued a report calling for major changes to strengthen

EPA’s stormwater regulatory program, which it criticized as being inconsistent nationally and

failing to adequately control all sources of stormwater discharge that contribute to waterbody

impairment. In response, EPA began efforts to expand regulations and strengthen the current

program with a revised rule. Agency officials said that the new rule would focus on stormwater

discharges from newly developed and redeveloped, or post-construction, sites, such as

subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers. The

rule was originally due to be proposed in 2011, but EPA missed that and several subsequent

deadlines, due to analytic problems associated with developing the rule. In 2014, the agency

announced that it would defer action on a national rule and instead will provide incentives,

technical assistance, and other approaches for cities to address stormwater runoff themselves.

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Stormwater Permits: Status of EPA’s Regulatory Program

Contents

Background ..................................................................................................................................... 1

Industrial Facilities .................................................................................................................... 2

Municipalities ............................................................................................................................ 3

Phase I ................................................................................................................................. 3

Phase II ............................................................................................................................... 4

Congressional Interest ..................................................................................................................... 6

Oil and Gas Facilities ................................................................................................................ 7

Stormwater Management at Federal Facilities .......................................................................... 8

EPA’s Stormwater Rulemaking ....................................................................................................... 9

Contacts

Author Contact Information .......................................................................................................... 12

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Stormwater Permits: Status of EPA’s Regulatory Program

Background

Stormwater discharge systems are the pipes and sewer lines that carry rainwater or snow melt, but

not domestic sanitary wastes, away from urban areas and commercial and industrial facilities. For

many years the focus of the nation’s water quality programs was on controlling pollutants

associated with industrial process wastewaters and municipal sewage discharges. More diffuse

and episodic discharges (such as rainfall runoff from farm lands and urban runoff) and discharges

believed to be relatively uncontaminated received less attention from policymakers and

regulators.

However, as the traditional sources of water pollution have become better controlled through laws

and regulations, attention has increasingly focused on remaining problems that continue to

prevent attainment of state and tribal water quality standards. Stormwater is one such source of

pollution. For some time, it was generally believed that stormwater was largely clean, or

uncontaminated. However, studies have demonstrated that this type of discharge—from rainfall

and snow melt—carries with it large amounts of organic and toxic pollutants that can harm water

quality, including oil and grease, heavy metals, pesticides, soil, and sediment.

In urban areas, widespread residential and commercial development results in the removal of

vegetation cover and building of impervious structures such as roads and parking lots. These

activities may change natural drainage patterns in an area, causing higher runoff flows during wet

weather events. Urbanization and the human alteration of landscapes and land uses that is

associated with it have resulted in the degradation of conditions in downstream waterbodies.

States report that stormwater discharges, including urban runoff, industrial activity, construction,

and mining, are a significant source of surface water quality problems today. But control of

stormwater discharges and other sources of wet weather pollution, including overflows from

combined and separate sewer systems, is complicated because discharges generally are

intermittent and are less amenable to “end of pipe” solutions than conventional industrial and

municipal water pollution.

Recognition of the water quality problems of stormwater runoff led Congress in 1987, when it

last comprehensively amended the Clean Water Act (CWA), to direct EPA to implement a specific

permit program for stormwater discharges from industrial sources and municipalities (P.L. 100-4).

Even before the 1987 amendments, the issue of how to regulate stormwater discharges had a

lengthy history of regulatory proposals, delays, legal challenges, and court decisions. Still, EPA

had been unable to devise a comprehensive and flexible administrative process for regulating

stormwater discharges before requirements were legislated in 1987. In that legislation, Congress

established a phased and tiered approach to permitting of stormwater discharges that

fundamentally redesigned the CWA’s approach to stormwater discharges. Congress recognized

that EPA’s difficulties in addressing sources of stormwater stemmed in part from the large number

of sources potentially subject to regulation, so the 1987 legislation adopted a procedure that

would enable the major contributors of stormwater pollutants to be addressed first, and remaining

stormwater discharges in later phases.

EPA initially issued regulations to implement Congress’s legislative mandate in 1990, utilizing a

series of phased requirements.1 Phase I applied to large dischargers: those associated with

industrial activities, municipal separate storm sewer systems serving 100,000 people or more, and

construction projects disturbing more than 5 acres. Smaller sources were slated for possible

1

U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System Application Regulations

for Storm Water Discharges,” 55 Federal Register 47990-48091, November 16, 1990.

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Stormwater Permits: Status of EPA’s Regulatory Program

regulation under Phase II of the program (discussed below) and included cities and towns with

separate storm sewer systems serving fewer than 100,000 people, commercial operations, and

smaller construction projects. Stormwater requirements are one element of the comprehensive

permit program, the National Pollutant Discharge Elimination System (NPDES), authorized in

Section 402 of the act. Under the act, it is illegal to discharge pollutants from point sources (e.g.,

industrial plant pipes, sewage treatment plants, or storm sewers) into the nation’s waters without

an NPDES permit—permits are the fundamental compliance and enforcement mechanism of the

law. EPA manages the NPDES stormwater program in four states (Idaho, Massachusetts, New

Hampshire, and New Mexico), plus the District of Columbia and most U.S. territories, and has

delegated that authority to the remaining 46 states and the Virgin Islands.

An estimated 123,000 industrial facilities (twice the number of industrial sources subject to the

base NPDES program) and 220 municipalities and counties were covered by the 1990 permit

rules for Phase I of the program. The initial procedures and deadlines were complex and were

made more confusing by subsequent deadline extensions.2

The 1987 CWA amendments directed delegated states (or EPA) to issue stormwater permits not

later than four years after enactment of that legislation. This would have required permits to be

issued by February 4, 1991, but this did not occur, in part because EPA’s 1990 rule was issued 21

months after the statutory deadline. Regulated sources must comply with stormwater permits

within three years of their issuance.

Permits require dischargers, at a minimum, to implement pollution prevention plans, although

remediation or additional treatment of runoff may also be required. Permits issued to

municipalities require cities to develop, implement, and enforce a stormwater management

program that addresses key areas such as public education, eliminating illicit connections to storm

sewers, good housekeeping of municipal operations, and control of erosion and sedimentation

from construction sites.

Prior to implementation of the stormwater regulatory program, the universe of NPDES permittees

nationwide was less than 70,000 industrial and municipal facilities. The addition of stormwater

permittees greatly expanded this regulatory program. EPA estimates that the total number of

stormwater permittees at any one time exceeds half a million—thus, NPDES stormwater

permittees outnumber wastewater permittees more than five-fold.

Industrial Facilities

Industries that manufacture, process, or store raw materials and which collect and convey

stormwater associated with those activities were required to apply for an NPDES permit under the

Phase I program. Several industries were specifically identified in EPA’s 1990 regulation: mining

operations; lumber and wood products; paper and allied products; printing, chemical products,

paints, varnishes, and lacquers; stone, clay, glass, and concrete; metals; petroleum bulk terminals;

hazardous waste treatment facilities; salvage operations; and powerplants.

Industrial facilities had several options to comply with these permit requirements. Chiefly, they

could obtain either individual or group permits. Applications for individual facility permits were

due to be submitted by October 1, 1992. For group permits (covering multiple facilities with

2

Moreover, the 1990 regulations themselves were challenged by an environmental group, the Natural Resources

Defense Council. In 1992, a federal appeals court ruled that EPA had failed to meet certain deadlines specified in the

1987 legislation and had been improper in exempting from regulation light industry and construction sites that affect

less than 5 acres of land. Natural Resources Defense Council v. EPA, 966 F.2d 1292 (9th Cir. 1992).

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Stormwater Permits: Status of EPA’s Regulatory Program

similar stormwater discharges), a two-step process applied: submitting a list of facilities to be

covered by September 30, 1991, and submitting more detailed information, such as sampling data

on 10% of facilities in the group and a description of a stormwater management program, by

October 1, 1992.3

EPA also provided a third option for industrial facilities, through a general permit procedure. A

general permit is one that covers discharges from more than one facility, thus making the large

number of stormwater permittees more manageable. Sources are only required to submit a Notice

of Intent to be covered by a general permit, rather than the detailed application for an individual

permit. EPA expected that general stormwater permits will make for a less costly and burdensome

permitting process through less extensive testing and control requirements, as well as minimal

monitoring and reporting. For most sources, general permits require preparation of a pollution

prevention plan, and compliance with the plan six months later. EPA issued general permits for

stormwater discharges associated with industrial and construction activities that disturb 5 acres or

more, which apply in the four states where EPA is the permitting authority for the stormwater

program. Using the EPA general permit as a model, most other states that have been delegated

permitting responsibility use similar general permits to reduce the administrative burden of the

industrial stormwater permit program.

Congress addressed the deadlines for stormwater permitting of industrial facilities twice.

Congress first extended aspects of the deadlines for group applications by industrial facilities

(P.L. 102-27, Dire Emergency Supplemental Appropriations Act of 1991), and in the 1991

Surface Transportation Act (P.L. 102-240), Congress clarified the deadlines applicable to

industrial activities that are municipally owned or operated (such as airports or powerplants).

Municipalities

Phase I

Much of the controversy about stormwater requirements has focused on impacts on cities, not

industrial sources. Municipalities with separate storm sewer systems (called MS4s) were subject

to EPA’s regulations under staggered deadlines based on the size of population served. In the

1990 Phase I regulations that apply to industrial activities, EPA also regulated discharges from

medium-size and large cities (covering those with populations greater than 100,000 persons). The

Phase I regulations are primarily application requirements that identify components that must be

addressed in permit applications. The rules require large and medium MS4s to develop a

stormwater management program, track and oversee industries facilities that are regulated under

the stormwater program, conduct monitoring, and submit periodic reports. The regulations

specified deadlines for these cities to provide regulators with information on legal authority over

stormwater discharges and to provide detailed information on source identification and

monitoring data. EPA identified 173 cities and parts of 47 urban counties as covered by Phase I.

3

The same deadlines also applied to industrial activities owned or operated by municipalities with a population of

250,000 or more. For industrial activities owned or operated by municipalities with populations of more than 100,000

but less than 250,000, the respective deadlines were May 18, 1992, and May 17, 1993. Certain government-owned or operated activities (airports, powerplants, and uncontrolled sanitary landfills) also were subject to the May 1992 and

May 1993 deadlines, even if the unit of government has a population of less than 100,000.

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Phase II

The 1987 CWA amendments exempted smaller cities (with populations of less than 100,000)

from any stormwater permit requirements until October 1, 1992, and directed EPA to develop a

suitable approach to address them under Phase II of the stormwater regulatory program. Because

of problems in formulating a permitting strategy, EPA did not issue regulations by the 1992

deadline, nor did it meet the deadline in a one-year extension that Congress provided in P.L. 102580. In 1995, EPA convened an advisory committee of stakeholders to assist in developing rules

by March 1, 1999, a deadline set in a judicial consent order in Natural Resources Defense

Council v. EPA (Civ. No. 95-0634 PFL [DDC, Apr. 6, 1995]) that required EPA to clarify the

scope of coverage and control mechanisms for the Phase II program. Based in part on extensive

discussions with the stakeholder advisory committee and with another court-approved extension,

EPA issued a final Phase II rule in 1999.4 EPA estimated that the rule would make approximately

3,000 more river miles safe for boating annually and protect up to 500,000 people a year from

illness due to swimming in contaminated waters.

The 1999 Phase II rule extended Phase I by requiring permits of two additional classes of

dischargers on a nationwide basis: (1) operators of MS4s serving populations of less than 100,000

persons in urbanized areas as defined by the Bureau of the Census, and (2) operators of

construction activities that disturb greater than 1 and less than 5 acres of land (larger construction

sites are covered by the Phase I rules). Separate storm sewer systems such as those serving

military bases, universities, large hospital or prison complexes, and highways are also included in

the definition of small MS4. EPA estimated that 5,040 small cities are covered by Phase II, along

with about 110,200 construction starts per year.5

Waivers from coverage are available both for small cities (those with fewer than 10,000 persons)

and construction activities if the discharges are not causing water quality impairment. At the same

time, additional small municipal systems and construction sites may be brought into the

stormwater program on a case-by-case basis, if permitting authorities determine that they are

significant contributors to water pollution. Under the 1999 rule, covered facilities were required

to apply for NPDES permit coverage by March 2003 (most under a general rather than an

individual permit) and implement stormwater management programs that include six minimum

management controls that effectively reduce or prevent pollutant discharges into receiving waters,

such as pollution prevention and eliminating illicit discharge connections for municipal

operations. The rule also provided that municipally operated industrial activities not previously

regulated were required to apply for permit coverage under the same schedule as other facilities

covered by Phase II.

In the final Phase II rule, EPA attempted to balance statutory requirements for a nationally

applicable program with sufficient administrative flexibility to focus on significant water quality

impairments. For example, EPA encouraged permitting authorities to use general rather than

individual permits for the majority of covered dischargers. The agency’s decision to not include

4

U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System—Regulations for Revision

of the Water Pollution Control Program for Storm Water Discharges,” 64 Federal Register 68721-68851, December 8,

1999.

5

Although precise numbers are not available, EPA now estimates that the number of regulated MS4s is about 7,000

(including 1,000 under Phase I and 6,000 under Phase II). The number of industrial permittees is estimated to be around

100,000. The construction site portion of the program each year covers about 200,000 permittees under Phase I (5 acres

or greater) and another 200,000 under Phase II (1 to 5 acres). See National Research Council of the National Academy

of Sciences, Water Science and Technology Board, Urban Stormwater Management in the United States, The National

Academies Press, Washington, DC, 2009, p. 36.

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construction sites smaller than 1 acre was based on the belief that regulating the smallest of such

sites would overwhelm the resources of permitting authorities and might not yield corresponding

water quality benefits. Further, EPA modified the previous Phase I rule to exclude industrial

facilities that have “no exposure” of their activities (such as raw materials) to stormwater, thus

reducing coverage by an estimated 76,000 facilities that have no industrial stormwater discharges.

These efforts to provide flexibility notwithstanding, many regulated entities continued to criticize

the scope of the stormwater program, saying that EPA had greatly underestimated the cost of the

Phase II rules (projected to be $297 million annually for small cities and $505 million annually

for construction activities).

Cities of all sizes have complained about the costs and difficulties of complying with EPA’s

regulations, especially because there is no specific CWA grant or other type of assistance program

to help pay for developing and implementing local stormwater programs. Many contend that

cities already are burdened with numerous environmental compliance requirements and lack

adequate resources to address stormwater controls in addition to drinking water, solid waste,

wastewater treatment, and sludge disposal problems. Where cities need to construct or install

technology to control stormwater discharges, the principal source of financial assistance is the

CWA’s state revolving fund (SRF) loan program that is administered by states. However, because

SRF assistance is not restricted to meeting just stormwater project needs, competition for

available funds for all types of eligible projects is intense.6

Many municipal and industrial dischargers covered by the Phase I and Phase II programs have

reached the end of their initial permit terms (NPDES permits are issued for five-year terms). For

permit renewals, the agency is implementing a streamlined reapplication process that will not

require the extensive information collection that characterized the first round of permitting.

Implementation of permits (i.e., translating permits into specific steps to manage stormwater

runoff) is now the challenge for permitting authorities and permittees. According to a 2001

Government Accountability Office (GAO) report, local governments are primarily using best

management practices (BMPs, sometimes called stormwater control measures, or SCMs) to

prevent or slow stormwater from quickly reaching nearby waterbodies and degrading water

quality, rather than requiring that stormwater be transported to treatment facilities.7 BMPs include

nonstructural measures to minimize contaminants getting into stormwater (e.g., street sweeping)

and structural practices such as detention ponds to separate contaminants from stormwater. GAO

criticized EPA for not establishing systematic efforts or measurable goals to evaluate the

effectiveness of the program in reducing stormwater pollution or to determine its costs, which

local governments have portrayed as high. In the 1999 rules, EPA set a goal of beginning to

evaluate implementation of Phase II of the program in 2012.

In a 2007 report, GAO examined implementation of the stormwater regulatory program by

municipalities.8 GAO found that implementation of both Phases I and II had been slow: nearly

11% of communities were not permitted as of 2006; and even in communities with permits,

delays occurred due to litigation or other disputes. Thus, GAO reported that because many

communities were still in the early stages of implementation at the time of the report, it was too

6

For additional information, see CRS Report 98-323, Wastewater Treatment: Overview and Background, by (name re

dacted) .

7

U.S Government Accountability Office, Water Quality, Better Data and Evaluation of Urban Runoff Programs

Needed to Assess Effectiveness, GAO-01-679, June 2001.

8

U.S. Government Accountability Office, Clean Water, Further Implementation and Better Cost Data Needed to

Determine Impact of EPA’s Storm Water Program on Communities, GAO-07-479, May 2007.

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early to determine the overall program burden. While EPA’s regulations provide flexibility, which

could limit program burden, increased burden could result if communities are required by states

or EPA to expand stormwater management activities or meet more stringent specific permit

conditions in the future. GAO found that EPA is not collecting complete and consistent cost and

other data, which hampers assessment of program burden.

The 1999 Phase II rules were challenged by environmental groups. The litigation resulted in a

2003 federal court ruling (Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003)).

The Phase II rules allowed permitting authorities to issue general permits for MS4 stormwater

discharges and required regulated MS4s to submit a Notice of Intent (NOI) to be covered by the

general permit. The court found that the Phase II rules failed to require review of NOIs and failed

to make NOIs available to the public or subject to public hearings and directed EPA to revise the

rules to correct these procedural shortcomings. Following the court’s ruling, EPA issued guidance

but did not propose revised rules. In 2014, the environmental groups sued EPA for failing to

follow the court’s nearly 12-year-old ruling. Under a settlement agreement with the

environmental plaintiffs, EPA agreed to issue final revised rules by November 17, 2016.

The agency issued revised MS4 rules on November 17.9 The new rule allows states to choose

between two options for increasing scrutiny of the MS4s’ compliance plants. It allows states and

other authorities crafting general permits for small MS4s to either outline in the permit terms all

compliance methods that are open to permittees, or set up a “two-step” process in which facilities

that apply for coverage must add their compliance plans as enforceable permit terms, including a

notice-and-comment process for each plan. According to EPA, the two-step general permit allows

the permitting authority to establish some requirements in the general permit and others

applicable to individual MS4s through a second proposal and public comment process. Most

states reportedly were pleased that the final rule provides permitting authorities with flexibility,

although a few states said that allowing states to choose the regulatory approach would be more

time-intensive and expensive than the system under the previous MS4 rules. Environmentalists’

responses to the new rule were mixed, with some supporting EPA’s actions and saying that the

revised rule would lead to tighter controls on MS4 permits, but others contending that the rule’s

flexibility would make oversight by the public more difficult.

Congressional Interest

Prior to issuance of the final Phase II rule in 1999, Congress included language in EPA’s FY2000

appropriation bill (P.L. 106-74) directing the agency not to issue the final rule before submitting a

detailed impact analysis to Congress. To meet a court-ordered deadline for the regulation, EPA

released the report concurrently with the Phase II rule.10 In the 106th Congress, legislation was

introduced to exempt construction sites of less than 5 acres and certain above-ground drainage

ditches from stormwater permitting requirements. At a 1999 Senate hearing, EPA witnesses

opposed the bill, saying that above-ground drainage ditches and small construction sites are

significant sources of water pollution and thus should be subject to stormwater management

requirements. No further action occurred.

9

A prepublication version of the Federal Register Notice for the rule is available at https://www.epa.gov/npdes/npdesstormwater-final-ms4-general-permit-remand-rule.

10

U.S. Environmental Protection Agency, Office of Water, Report to Congress on the Phase II Storm Water

Regulations, EPA 833-R-99-001, September 1999, http://www.epa.gov/npdes/pubs/ReptoCong_PhII_SWR.pdf.

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In response to concerns about program impacts and costs, the 107th Congress enacted legislation

allowing states to use Section 319 grant funds, which are used for projects to manage nonpoint

sources of water pollution, for projects or activities related to developing and implementing a

Phase II stormwater program (§301 of P.L. 107-303). This authority only applied to Section 319

funds in FY2003. Legislation to extend this authority beyond FY2003 was introduced in the 108th

Congress, but was not enacted.

Oil and Gas Facilities

As the March 2003 Phase II deadline approached (affecting small municipalities and construction

sites), EPA proposed a two-year extension of the rule for small oil and gas exploration and

production facility construction sites to allow the agency to assess the rule’s economic impact on

that industry. EPA had initially assumed that most oil and gas facilities would be smaller than one

acre in size and thus excluded from Phase II rules, but newer data indicated that up to 30,000 new

sites per year would be of sizes subject to the rule. In March 2005 EPA extended the exemption

until June 2006 for further study and said it would issue a specific rule for small oil and gas

construction sites by that date. The postponement did not affect other industries, construction

sites, or small cities covered by the 1999 rule. Under the 1987 amendments to the CWA, the

operations of facilities involved in oil and gas exploration and production generally were

exempted from compliance with stormwater runoff regulations (so long as the runoff is

uncontaminated by pollutants), but the construction of associated facilities was not.

Omnibus energy legislation enacted in the 109th Congress (P.L. 109-58, the Energy Policy Act of

2005) included a provision addressing this issue. Section 323 amends the CWA to specifically

include construction activities at all oil and gas development and production sites, regardless of

size (including sites larger than 5 acres, previously covered by Phase I), in the law’s general

statutory exemption for oil and gas facilities from stormwater rules. Its intention was to exempt

from the CWA all uncontaminated stormwater discharges that occur while setting up drilling

operations.

Oil and gas officials, who supported the provision, said that the existing EPA stormwater rules

create time-consuming permitting requirements, even though the short construction period for

drilling sites carries little potential for stormwater runoff pollution. Opponents argued that the

provision did not belong in the omnibus energy legislation and that there is no evidence that

construction at oil and gas sites causes less pollution than other construction activities, which are

regulated under EPA’s stormwater program.

EPA promulgated a rule to implement Section 323 in 2006.11 The rule was criticized by some

interest groups and Members of Congress who argued that EPA had exceeded its authority by

broadly defining the scope of contamination that is exempted by the rule beyond the statutory

language to also include stormwater discharges contaminated solely with sediment. In May 2008,

a federal court held that the rule is arbitrary and capricious, and it vacated the rule.12 EPA

petitioned the court to rehear the case, but the request was denied—thus, the exemption is no

longer in effect. At the time, EPA said that it intends to issue a revised rule that would remove the

2006 rule from the Code of Federal Regulations consistent with the court vacatur and codify the

11

U.S. Environmental Protection Agency, “Amendments to the National Pollutant Discharges Elimination System

(NPDES) Regulations for Storm Water Discharges Associated with Oil and Gas Exploration, Production, Processing,

or Treatment Operations, or Transmission Facilities,” 71 Federal Register 33628-33640, June 12, 2006.

12

Natural Resources Defense Council v. U.S. Environmental Protection Agency, 526 F.3d 591 (9th Cir. 2008).

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statutory exemption in P.L. 109-58, but the agency has not proposed any revisions or announced a

specific schedule for doing.

Legislation to repeal Section 323 was introduced in the 109th Congress, but no further action

occurred. In the 111th Congress, legislation to repeal the exemption passed the House (the

provision was Section 728 of H.R. 3534, the Consolidated Land, Energy, and Aquatic Resources

Act), but it was not enacted. In the 114th Congress, a bill has been introduced to repeal the oil and

gas exemption enacted in P.L. 109-58. This bill, H.R. 1460, also would direct the Secretary of the

Interior to conduct a study of stormwater runoff from oil and gas operations that may result in

contamination. Similar legislation was introduced in the 113th Congress.

Stormwater Management at Federal Facilities

Congress often looks to federal agencies to lead or test new policy approaches, a fact reflected in

legislation passed in 2007. Section 438 of P.L. 110-140, the Energy Independence and Security

Act (EISA), requires federal agencies to implement strict stormwater runoff requirements for

development or redevelopment projects involving a federal facility in order to reduce stormwater

runoff and associated pollutant loadings to water resources. The legislation requires agencies to

use site planning, construction, and other strategies to maintain or restore, to the maximum extent

technically feasible, the predevelopment hydrology of the property.

To assist agencies in meeting these requirements, EPA issued technical guidance.13 The guidance

provides two options for meeting the performance objective of preserving or restoring the

hydrology of a site: retaining the 95th percentile rainfall event (i.e., managing rainfall on-site for

storm events whose precipitation total is less than or equal to 95% of all storm events over a

given period of record), or site-specific hydrologic analysis (i.e., using site-specific analysis to

determine predevelopment runoff conditions). According to the guidance, using a performancebased approach rather than prescriptive requirements is intended to give site designers maximum

flexibility in selecting appropriate control practices. Issuance of the guidance also fulfilled an

element of an October 2009 executive order that formally assigned to EPA the responsibility to

issue the Section 438 guidance, in coordination with other agencies, and to do so by December 5,

2009.14

In December 2010 Congress passed legislation requiring federal agencies to pay local fees for

treating and managing stormwater runoff. The legislation amends CWA Section 313, which

requires federal agencies to comply with all federal, state, and local water pollution control

requirements as nongovernmental entities, including the payment of reasonable service charges.

The issue emerged earlier in 2010 when several federal agencies announced that they would not

pay stormwater fees assessed by the District of Columbia, claiming that the fees amounted to a

tax that the agencies were not required to pay, because the waiver of sovereign immunity in

Section 313 applies to fees and charges, but not a tax. The legislation was intended to clarify

uncertainty over whether federal agencies must pay local stormwater fees. President Obama

signed the legislation in January 2011 (P.L. 111-378).

13

U.S. Environmental Protection Agency, Office of Water, Technical Guidance on Implementing the Stormwater

Runoff Requirements for Federal Projects Under Section 438 of the Energy Independence and Security Act, EPA 841B-09-001, December 2009, http://www.epa.gov/owow/NPS/lid/section438/pdf/final_sec438_eisa.pdf.

14

Executive Order 13514, “Federal Leadership in Environmental Energy and Economic Performance,” 71 Federal

Register 52117-52127, October 8, 2009.

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A continuing aspect of the issue of interest in a few locations is the scope of P.L. 111-378 and

whether it requires the government to pay local stormwater fees retroactively. After the

Bonneville Power Administration objected to paying retroactive stormwater fees imposed by two

Washington localities following passage of the federal facility amendment, the matter ended up in

federal court. The government took the position in the litigation that the legislative change

amounted to a redefinition of “service charges,” instead of a clarification of Congress’s original

intent, and would only apply prospectively. In 2012, a federal district court rejected the

government’s position and held that the CWA amendment was merely a clarification of the statute

and thus is entitled to retroactive effect.15 The federal government did not appeal this ruling. A

similar case in Georgia was dismissed following a settlement agreement between the parties, but

the settlement did not resolve lingering questions whether stormwater charges are fees for

“reasonable services provided” or taxes, an issue of concern more broadly than just regarding

government facilities.

EPA’s Stormwater Rulemaking

In 2006 EPA requested the National Research Council of the National Academy of Sciences

(NRC) to conduct a review of the existing stormwater regulatory program. The resulting report,

issued in 2009, called for major changes to EPA’s stormwater control program that would focus

on the flow volume of stormwater runoff instead of just its pollutant load. The committee

observed that—

stormwater discharges would ideally be regulated through direct controls on land use,

strict limits on both the quantity and quality of stormwater runoff into surface waters, and

rigorous monitoring of adjacent waterbodies to ensure that they are not degraded by

stormwater discharge.... Presently, however, the regulation of stormwater is hampered by

its association with a statute that focuses primarily on specific pollutants and ignores the

volume of discharges.16

The NRC report recommended that EPA adopt a watershed-based permitting system

encompassing all discharges—stormwater and wastewater—that could affect waterways in a

particular drainage basin, rather than individual permits that do not account for cumulative

conditions from multiple sources in the same watershed. Under the proposed watershed

permitting strategy, responsibility to implement watershed-based permits and control all types of

municipal, industrial, and construction stormwater discharges would reside with MS4 permittees.

The report criticized EPA’s current approach, which leaves much discretion to regulated entities

to set their own standards through stormwater management plans and to self-monitor. As a result,

enforcement is difficult and variable, and information to assess the water quality benefits of the

regulatory program is limited. The report also noted that adequate resources, including new levels

of public funds, will likely be required to operate a more comprehensive and effective stormwater

permitting program.

Subsequently, EPA initiated information-gathering and public dialogue activities as a prelude to

possible regulatory changes that would respond to the NRC’s criticism of inconsistency in

stormwater requirements nationally and embrace the report’s recommendation to adequately

control all sources of stormwater discharge that contribute to waterbody impairment. EPA

proposed to collect data from MS4s, states, and industry entities involved in developing or

redeveloping sites on the scope of the current regulatory program and management practices, as

15

16

United States v. Renton, W.D. Wash., No. C11-1156JLR, May 25, 2012.

Supra note 5, p. 3.

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Stormwater Permits: Status of EPA’s Regulatory Program

well as information on control, pollution prevention technologies, and BMPs applied to

stormwater discharges from newly developed and redeveloped sites.17

In response to the NRC report, EPA began work to develop a rule to revise the existing

stormwater regulatory program. The rule also followed a 2010 settlement agreement between

EPA and environmental litigants, which called for EPA to revise existing rules “to expand the

universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges

from newly developed and redeveloped sites.”18 In the settlement, EPA committed to consider

supplemental provisions as part of the national rule that would apply only to the Chesapeake Bay

watershed, a region where municipal stormwater discharges are a significant cause of water

quality impairment and are one of the only sources of pollutants with increasing loads to the Bay

and its tributaries.

In early 2010 EPA held a series of listening sessions across the country as part of a process

seeking public comments on potential considerations for regulatory changes.19 The agency also

sent survey questionnaires to property owners and developers, municipal sewer system

authorities, state regulators, and EPA regional offices to obtain their input. Some industry groups

reportedly criticized possible expansion of the current program, saying that EPA’s authority to

regulate stormwater does not extend to regulation of post-construction discharges. Some states

also said that EPA lacks the technical knowledge to regulate stormwater across the nation, while

states with comprehensive regulations, such as Florida and Maryland, demonstrate that regulation

is best done at the state and local level, because of locational differences in stormwater

discharges. EPA officials noted that a number of states have developed their own stormwater

management programs, particularly in the Northeast, where lawsuits have pushed regulators, and

also in some high-precipitation states in the Northwest. A number of commenters urged EPA to

ensure that performance standards designed to reduce storm runoff be flexible so that

communities can create requirements appropriate to their stormwater needs. Cost is a key issue

raised by some states and municipalities concerned about the possibility of mandatory retrofit

requirements that would impose a significant economic burden on cities.20 Some state and local

government representatives—while they concerned about details of a rule—believed that a

national rule would provide needed uniformity and consistency in stormwater programs across

the nation.

During efforts to develop a national rule, EPA explored regulatory options that would strengthen

the regulatory program by establishing specific post-construction requirements for stormwater

discharges from new development and redevelopment, which currently are not regulated. While

MS4s are required to address stormwater discharges from new development and redevelopment

in their management plans, existing rules do not include specific management practices or

standards to be implemented. Other options that EPA considered included expanding the area

defined as MS4s to include rapidly developing areas, devising a single set of consistent

regulations for all MS4s, and requiring MS4s to address stormwater discharges in areas of

existing development through retrofit practices. EPA officials said that the rule would focus on

17

U.S. Environmental Protection Agency, “Agency Information Collection Activities; Proposed Collection; Comment

Request; Stormwater Management Including Discharges from Newly Developed and Redeveloped Sites; EPA ICR No.

2366.01, OMB Control No. 2040-NEW,” 74 Federal Register 56191-56193, October 30, 2009.

18

Fowler v. EPA, D.D.C. No. 1:09-cv-5, May 11, 2010, pp. 18-19.

19

U.S. Environmental Protection Agency, “Stakeholder Input; Stormwater Management Including Discharges from

New Development and Redevelopment,” 74 Federal Register 68617-68622, December 28, 2009.

20

Examples of urban retrofits include breaking up concrete and installing stones, thereby replacing an impermeable

surface with a permeable one that will absorb runoff; and adding vegetation and trees to parking lots.

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Stormwater Permits: Status of EPA’s Regulatory Program

stormwater discharges from developed, or post-construction, sites, such as subdivisions,

roadways, industrial facilities, and commercial buildings or shopping centers, and to seek to

ensure that even after development projects are completed, runoff levels from sites are equivalent

to pre-construction hydrology. The proposal, referred to as the “post-construction rule,” likely

would set a first-time stormwater retention performance standard to limit runoff that would

otherwise enter an MS4 system. By retaining a portion of rainfall on-site, the discharge of

pollutants for that volume is prevented from entering the sewer system. Requirements in the postconstruction rule, once finalized, would be incorporated into MS4 permits as permits come up for

renewal.

The stormwater rulemaking drew some interest from Members of Congress. In 2013, Republican

members of the Senate Environment and Public Works Committee urged EPA to suspend work on

the rulemaking until the agency could seek meaningful input from small businesses and provide a

report to Congress on the necessity for new stormwater regulations.21

Under the 2010 settlement with environmentalists, EPA was initially due to propose a national

rule by September 2011 and complete the rule in 2014. Subsequently, the deadlines were

renegotiated several times. Under the last deadline, EPA was to propose regulations by June 17,

2013, but EPA missed that deadline, and on June 18, the environmental plaintiffs notified the

agency that it was in breach of the legal settlement. At that point, EPA and the plaintiffs had

reached a legal impasse; EPA reportedly continued to work on the rule, while the environmental

groups considered further legal action. Finalizing a rule with national application was said to be

complicated by a number of analytic issues, particularly how to calculate costs and benefits of the

proposal and how to incorporate flexibility, such as possibly including lengthy implementation

plans for retrofit projects and allowing states with equivalent stormwater programs to regulate in

lieu of EPA.

In mid-March 2014, EPA announced that it would defer action on the post-construction

stormwater rule and instead will provide incentives, technical assistance, and other approaches for

cities to address stormwater runoff themselves. In particular, the agency said that it will leverage

existing requirements to strengthen municipal stormwater permits and will continue to promote

green infrastructure as an integral part of stormwater management.22

Although EPA discontinued development of a national stormwater rule, the agency continues to

pursue some of the ideas that the rule had been expected to incorporate, such as emphasizing onsite retention of stormwater at construction sites or requiring green infrastructure, when

individual MS4 permits come up for renewal. These concepts are reflected, for example, in the

MS4 permit for Washington DC, issued by EPA in 2013, and EPA’s 2014 proposed MS4 general

permit for Massachusetts; both were crafted by EPA, which is the NPDES permitting authority in

DC and Massachusetts. In the majority of states, permitting authority has been delegated to states

(see page 2). In those cases, environmental groups are reportedly pursuing a permit-by-permit

approach of encouraging states to strengthen the terms of new and reissued MS4 permits.

21

Letter from Senator David Vitter et al., Ranking Member, Senate Committee on Environment and Public Works, to

Nancy K. Stoner, Acting Assistant Administrator, U.S. EPA, May 20, 2013, on file with author.

22

For additional information, see CRS Report R43131, Green Infrastructure and Issues in Managing Urban

Stormwater, by (name redacted) .

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Stormwater Permits: Status of EPA’s Regulatory Program

Author Contact Information

(name redacted)

Specialist in Resources and Environmental Policy

[redacted]@crs.loc.gov , 7-....

Congressional Research Service

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