Stormwater Permits: Status of EPA's Regulatory Program

Order Code 97-290 ENR

Updated February 8, 2005

CRS Report for Congress

Received through the CRS Web

Stormwater Permits: Status of

EPA’s Regulatory Program

Claudia Copeland

Specialist in Resources and Environmental Policy

Resources, Science, and Industry Division

Summary

The Environmental Protection Agency (EPA) and states are implementing a

federally mandated program for controlling stormwater discharges from industrial plants

and municipalities. Large cities and most industry sources are subject to rules issued in

1990, and EPA issued permit rules to cover smaller cities and other industrial sources

in 1999. Because of the large number of affected sources and deadline changes that led

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

program’s requirements, especially on cities, are a continuing concern. The 108th

Congress considered but did not enact omnibus energy legislation (H.R. 6) that included

a provision to give the oil and gas industry regulatory relief from some stormwater

requirements. This report will be updated as warranted.

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 sources (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 current 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

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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.

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

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

Recognition of the water quality problems of stormwater runoff led Congress in

1987, when it last amended the Clean Water Act (CWA) comprehensively, to direct EPA

to implement a specific permit program for stormwater discharges from industrial sources

and municipalities (P.L. 100-4, Section 405). 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.

EPA initially issued regulations to implement Congress’ 1987 legislative mandate

in 1990, proposing a series of phased requirements (55 Federal Register 47990, Nov. 16,

1990). 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 five acres. Smaller sources were slated for possible

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 five states (Alaska, Idaho, Massachusetts, New

Hampshire, and New Mexico) and has delegated that authority to the remaining 45 states.

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.1

The 1987 CWA amendments directed EPA (or qualified states) 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

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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 five acres of land.

Natural Resources Defense Council v. EPA, 966 F.2d 1292 (9th Cir. 1992).

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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.

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 power plants.

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

First, 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 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, 1992.2

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.

Sources are only required to submit a Notice of Intent to be covered by a general 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 required

preparation of a pollution prevention plan, and compliance with the plan six months later.

EPA has issued general permits for stormwater discharges associated with industrial and

construction activities that disturb five acres or more, which apply in the five states where

EPA is the permitting authority for the stormwater program. Most other states which

have been delegated permitting responsibility by EPA are using similar general permits

to reduce the administrative burden of the industrial stormwater permit program.

Since 1987, Congress has twice addressed the stormwater permitting program for

industrial facilities. 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),

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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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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) are 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 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.

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

EPA’s regulations. 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.

Phase II. The 1987 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. 102-580. 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)) requiring 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 October 29, 1999 (64 Federal Register 68721,

Dec. 8, 1999). 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 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). EPA estimated that 5,040

small cities are covered by Phase II, along with about 110,200 currently unregulated

construction starts per year.

Waivers from coverage are available both for small cities (those with less 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 storm water program on a case-by-case basis, if permitting

authorities determine that they are significant contributors to water pollution. Covered

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facilities were required to apply for NPDES permit coverage (most under a general rather

than an individual permit) by March 2003 and implement 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 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 has 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).

Many dischargers covered by the Phase I program 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 permit authorities and permittees.

According to a Government Accountability Office report, local governments are primarily

using best management practices (BMPs) to manage stormwater, rather than requiring that

stormwater be transported to treatment facilities (Water Quality, Better Data and

Evaluation of Urban Runoff Programs Needed to Assess Effectiveness, GAO-01-679,

June 2001). 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.

Congressional Interest

Stormwater program issues have received some recent congressional attention. 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

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deadline for the regulation, EPA released the report concurrently with the final rule.3

Legislation also was introduced to exempt construction sites of less than 5 acres and

certain above-ground drainage ditches from stormwater permitting requirements. EPA

witnesses opposed the bill at an October 1999 hearing by the Senate Environment and

Public Works Committee, 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 on this bill.

EPA has recognized that its approach to managing stormwater discharges could

change if Congress amends the Clean Water Act. This seemed possible when, during the

104th Congress, the House passed a reauthorization bill (H.R. 961) which included

provisions to replace the current stormwater permitting program with state-run

management programs similar to that required under the Act for nonpoint sources of

water pollution (Section 319). No further action on H.R. 961 occurred, and Congress has

not subsequently considered comprehensive reauthorization legislation. The 107th

Congress did enact a bill affecting the stormwater program. In response to concerns about

impacts of the Phase II program, P.L. 107-303 included a provision allowing states to use

Section 319 grant funds in FY2003 to carry out stormwater management projects.

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

(S. 1716/H.R. 3528), but Congress did not act on either of these bills.

As the March 2003 Phase II deadline approached, 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 economic impact on that industry. EPA said that

the delay was needed to comply with President Bush’s Executive Order 13211, which

directed agencies to consider the effects of their actions on energy-related production

activities. The postponement did not affect other industries, construction sites, or small

cities covered by the 1999 rule. Currently under the CWA, the operations of facilities

involved in oil and gas exploration and production generally are exempt from compliance

with stormwater runoff regulations, but the construction of associated facilities is not. In

the 108th Congress, omnibus energy legislation included a provision addressing this issue.

Section 328 of the conference report on H.R. 6 (H.Rept. 108-175) would have amended

the CWA to specifically include construction activities, regardless of size, in the types of

oil and gas facilities that are covered by the law’s general statutory exemption from

stormwater rules.

Oil and gas officials say that the EPA stormwater rule creates costly permitting

requirements, even though the short construction period for drilling sites carries little

potential for stormwater runoff pollution. Supporters of the amendment in H.R. 6 said

it was intended to clarify existing CWA language. Opponents argued that the provision

did not belong in the energy legislation and that there was no evidence that construction

at oil and gas sites causes less pollution than other construction activities. The 108th

Congress did not enact omnibus energy legislation, thus leaving the oil and gas

stormwater issue for future consideration. In the mean time, in January 2005, EPA

proposed an additional 15 months’ extension of the deadline for small oil and gas

construction sites to obtain permits (until June 2006). The agency reportedly is

developing other regulatory options for these facilities.

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The report is available at [http://www.epa.gov/npdes/pubs/ReptoCong_PhII_SWR.pdf].