Stormwater Permits: Status of
EPA's Regulatory Program

Claudia Copeland
Specialist in Resources and Environmental Policy
Environment and Natural Resources Policy Division

Updated June 10, 1998

97-290 ENR

CONTENTS

Summary
Background
Municipalities
Industrial Facilities
Recent Events

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 done in recent years 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. States report that about 30% of surface water quality problems today are attributable to stormwater discharges. Significant sources include urban runoff, industrial activity, construction, and mining.

Recognition of the water quality problems of stormwater runoff led Congress in 1987, when it last 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, Section 405). Even before the 1987 amendments, the issue of how to regulate stormwater discharges had a lengthy history of regulatory proposal, delays and 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 November 1990, proposing a series of phased requirements.1 Phase I applies to large dischargers: those associated with industrial activities, municipal separate storm sew(r systems serving 100,000 people or more, and construction projects disturbing more than five acres. Smaller sources were slated for possible regulation under the second phase of the program and include cities and towns with separate storm sewer systems serving fewer than 100,000 people, commercial operations, and smaller construction projects. The 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 stormwater sewers) into the nation S waters without an NPDES permit - this is the fundamental compliance and enforcement requirement of the law. Stormwater permits are issued either by EPA or by states which EPA determines are qualified to administer the core NPDES permit program.

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 several deadline extensions provided after November 1990.2

The 1987 CWA amendments directed EPA (or qualified states) to issue stormwater permits not later than 4 years alter enactment of that legislation. This would have required permits to be issued by February 4, 1991, but this did not occur, in part because EPAs November 1990 rule was issued 21 months after the statutory deadline. The Act requires regulated sources to comply with stormwater permits not later than 3 years after issuance of a permit. Permits issued under this program 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.

Industrial Facilities

Industries that manufacture, process, or store raw materials and which collect and convey stormwater associated with those activities are required to apply for an NPDES permit under the Phase I program in order to discharge lawfully into the nation's waters. 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 percent 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 within a state and is issued either by EPA or a state. Sources covered by a general permit are not required to submit either a group or individual permit application; they are required to submit a Notice of Intent to be covered by a general permit. Thus, EPA expects 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. 4

The general permit aspect of the EPA stormwater program applies in 10 states in which EPA issues all Clean Water Act permits (because permitting responsibility has no been delegated to the state), and several others where EPA issues permits to federal facilities and sources on Indian lands. EPA estimates that over 25,000 industrial facilities and construction sites are eligible for general permit coverage in these states and territories. General permits also could be utilized in other states with delegated authority to issue general NPDES permits. The remaining 40 states have issued or are preparing general stormwater permit programs, and most are expected to use the general permit mechanism to reduce the administrative burden of the industrial stormwater permit program. Still, the opportunity to apply for a general permit depends on the state in which the source is located, whether EPA or the state is the permitting agency, and whether the state has been delegated general permitting authority.

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), Congress clarified the deadlines applicable to industrial activities that are municipally owned or operated (Such as airports or powerplants).

Municipalities

Much of the controversy about stormwater requirements has focused on impacts on cities, not industrial sources. Municipalities with separate storm sewer systems also are. subject to the statutory mandate and EPA's regulations under staggered deadlines based. on the size of population served. For the largest cities (those with populations of 250, 00 (or more), part I permit applications (providing information on legal authority over stormwater discharges) were due November 8, 1991, and part 2 applications (containing source identification, monitoring data, and other details) were due November 16, 992 For medium-size cities (those with populations between 100,000 and 250,000), application deadlines of May 18, 1992, and May 17, 1993, respectively, applied. EPA identified 173 cities and parts of 47 urban counties as being covered by the program. The deadlines affecting these municipalities have not been modified by EPA or Congress.

The 1987 amendments exempted smaller cities (those with populations of less that,. 100,000) from any stormwater permit requirements until October 1, 1992, and directed EPA to develop a suitable approach to address them. Because of delays with Phase I and problems in formulating a permitting strategy, EPA did not issue regulations by the October 1992 deadline. Concerned about the impact on cities of EPA's failure to act, the 102nd Congress passed legislation giving EPA an additional year to issue Phase II. regulations and giving small cities 2 additional years, until October 1994, to comply (P.L 102-580). Phase II also applies to all remaining light industrial and commercial facilities and construction sites of less than 5 acres. EPA estimated that millions of facilities could be subject to Phase II.

Large, medium and small cities 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. Some local officials do not consider stormwater control a top priority for expenditure of their limited funds, especially since the Clean Water Act does not authorize grant assistance to help cities with the permitting process. As a result. stormwater permitting has been a central issue in recent debate over unfunded federal mandates. 5 EPA responds that it has attempted to minimize the administrative burdens of the regulations both for municipalities and industrial sources, while providing the comprehensive program mandated in the 1987 legislation.

EPA did not meet the October 1993 deadline for Phase II regulations. Early in 1994, the Agency proposed that, as part of reauthorizing the Clean Water Act (which many expected to occur during the 103rd Congress), the law be modified to tailor Phase II requirements to apply only to urban stormwater discharges that pose the highest risk. EPA estimated that its proposal would provide regulatory relief and save municipalities between $755 million and $850 million per year. During the 103rd Congress, committees considered legislation based on EPA's recommendations, but time ran out on efforts to) pass either comprehensive reauthorization legislation or a separate bill dealing only with stormwater. Alter October 1, 1994, the permit exemption for smaller cities expired, but since no regulations were in place, as a practical matter it would have been difficult for these cities to have obtained stormwater discharge permits. EPA officials said they would not take enforcement action against cities for discharging without a permit, yet small cities and unregulated industries are still at risk of litigation by individuals or groups under citizen suit provisions of the law. Developing a Phase II program to minimize impacts on the large number of sources potentially covered by it has been a key goal of EPA's subsequent regulatory efforts.

Recent Events

In April 1995, EPA issued a rule establishing a two-tiered approach for regulating smaller stormwater dischargers under Phase II. First, sources that are determined to be significant contributors to water quality problems will be required to apply for a discharge permit within 180 days of receiving notice of such a designation. Second, remaining dischargers will be required to apply for permits within 6 years (by August 7, 2001). However, at that time EPA did not determine who would be regulated and what requirements would apply under Phase II (for example, the Phase II program might include non-permit control strategies for some or many types of covered facilities, to allow for efficient targeting of environmental problems). Subsequently, EPA convened an advisory committee of stakeholders (states, cities, industries, and environmentalists) to assist in developing rules to be proposed by September 1, 1997, and issued by March 1, 1999. These deadlines were 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 discussions with participants in the stakeholder advisory committee. in January 1998, EPA proposed Phase II program rules to cover additional stormwater sources not previously regulated. When final, these rules would supersede the April 1995 rule. The proposal designates 2 classes of facilities for automatic coverage: small municipal separate storm sewer systems in urbanized areas (estimated to be about 3,500( cities) and construction activities that disturb from 1 to 5 acres of land (about 110,000( sites a year would be included, according to EPA). States or EPA would issue permits most likely general permits, by May 31, 2002. Additional sources could he regulated by locally based designation on a case-by-case basis.

In this regulatory proposal, EPA is again attempting to balance statutory requirements for a nationally applicable program with sufficient administrative flexibility to focus on significant water quality impairments. Thus, EPA proposes to exclude from the stormwater program Phase I facilities that have "no exposure" of industrial activities (such as raw materials) to stormwater, thereby reducing application of the program by an estimated 70,000 facilities that have no industrial stormwater discharges. Compared with the approach presented in April 1995, EPA says, this proposal would affect fewer sources (about 3,500 small municipalities, rather than about 19,000) at significantly less cost Nevertheless, many of the public comments submitted to EPA on the proposal were critical, saying that EPA has greatly underestimated costs and should incorporate additional flexibility, such as providing states the option of developing individual stormwater management programs subject to EPA approval. Environmentalists generally do not favor such an option, which they say could result in delay and inconsistency among state programs and likely would not allow for citizen suits. Questions of costs and regulatory or management options are likely to be a focus of the final rule, which EPA still expects to issue in March 1999.

Many dischargers covered by the Phase I program (industries, large and medium cities) are nearing the end of their initial permit terms (NPDES permits are issued for 5-year terms). For permit renewals, the Agency is now implementing a streamlined reapplication process that will not require the extensive and burdensome information collection that characterized the first round of permitting.

EPA recognizes that its approach to managing stormwater discharges could change if Congress amends the Clean Water Act. This seemed possible when, during the 1 04th Congress, the House passed a reauthorization bill (H.R.961) which included provisions to replace the national stormwater permitting concept now being implemented. It would have repealed section 402(p) of current law and substituted state-run management programs similar to that required under the Act for nonpoint sources of water pollution. Critics objected to the stormwater provisions of the bill, saying that while it is appropriate to give states more flexibility in dealing with stormwater, the bill would have reduced water quality protection by relaxing current stormwater pollution controls. Proponents said that the current permitting program has resulted in significant control costs and regulatory burdens but little, if any, water quality improvements. No further action or H.R. 961 occurred during the 104th Congress. Because of competing legislative priorities and limited time this year, congressional action to reauthorize the Clean Water Act is not expected before the l06th Congress. Reviewing the Act's stormwater requirements could be a priority then, especially if many stakeholders are dissatisfied with resolution of EPA's Phase II rules, due early in 1999.

ENDNOTES

1 55 Federal Register 47990, Nov.16, 1990.

2 Moreover, the November 1990 regulations themselves were challenged by an environmental group the Natural Resources Defense Council. On June 4, 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 affecting less than five acres of land. Natural Resources Defense Council V. EPA, 966 F.2d 1292 (9th Cir. 1992).

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.

4 A general "multi-sector" permit covering 29 industry sectors was promulgated in September 1995 (60 Federal Register 50804, Sept.29, 1995). A general permit for construction activities was first promulgated in 1992 and repromulgated in February 1998 (63 Federal Register 7858, Feb.17.1998). (Like other NPDES permits, stormwater permits are issued for 5-year terms.)

5 The l04th Congress addressed the unfunded mandates issue in a measure (P.L. 1044) intended to deter the federal government from imposing expensive new intergovernmental requirements without providing funding. The bill permits a point of order to be raised in the Senate or House against any bill that would impose unfunded mandates of more than $50 million on states or localities. In the House, a majority of Members would be required to vote to waive such a point of order. However, this law does not provide relief from previously enacted mandates, such as the stormwater program enacted in 1987. It may be an important aspect of CWA reauthorization.