Stormwater Permits: Status of EPA’s
Regulatory Program
Claudia Copeland
Specialist in Resources and Environmental Policy
July 30, 2012
Congressional Research Service
7-5700
www.crs.gov
97-290
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Stormwater Permits: Status of EPA’s Regulatory Program
Summary
The Environmental Protection Agency (EPA) and states are implementing 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, and EPA issued permit rules
to cover smaller cities and other industrial sources and construction sites 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 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 May 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 (H.R. 3534), but the Senate took no action.
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 has begun efforts to expand regulations and strengthen the current
program with a revised rule that it expects to propose in mid-2013 and to finalize by December
2014. The new rule is expected to 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.
Congressional Research Service
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 ................................................................................................................ 6
Stormwater Management at Federal Facilities .......................................................................... 7
Recent Developments: NRC Report and Potential Regulatory Changes......................................... 9
Contacts
Author Contact Information........................................................................................................... 11
Congressional Research Service
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 all
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
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.
Congressional Research Service
1
Stormwater Permits: Status of EPA’s Regulatory Program
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
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,
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).
Congressional Research Service
2
Stormwater Permits: Status of EPA’s Regulatory Program
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
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 has 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.
Since 1987, Congress has twice addressed the deadlines for stormwater permitting of 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
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 1 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
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.
Congressional Research Service
3
Stormwater Permits: Status of EPA’s Regulatory Program
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.
Phase II
The 1987 CWA amendments exempted smaller cities (with populations of fewer 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]) 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
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.
Congressional Research Service
4
Stormwater Permits: Status of EPA’s Regulatory Program
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 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, 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
6 For additional information, see CRS Report 98-323, Wastewater Treatment: Overview and Background, by Claudia
Copeland.
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.
Congressional Research Service
5
Stormwater Permits: Status of EPA’s Regulatory Program
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 has 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 are still in the early stages of implementation, it is too 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.
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.9 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 (S. 2139/H.R. 3625). At an October 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.
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 (S. 1716/H.R. 3528).
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
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.
9 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.
Congressional Research Service
6
Stormwater Permits: Status of EPA’s Regulatory Program
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 2006.10 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.11 EPA
petitioned the court to rehear the case, but the request was denied—thus, the exemption is no
longer in effect. EPA 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 statutory exemption
in P.L. 109-58, but the agency has not announced a specific schedule for doing so. Legislation to
repeal Section 323 was introduced in the 109th Congress (H.R. 4541), but no further action
occurred.
In the 111th Congress, legislation to repeal the exemption that was enacted in P.L. 109-158 passed
the House on July 30, 2010 (the provision was Section 728 of H.R. 3534, the Consolidated Land,
Energy, and Aquatic Resources Act), but there was no further action on this bill.
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
10 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.
11 Natural Resources Defense Council v. U.S. Environmental Protection Agency, 526 F.3d 591 (9th Cir. 2008).
Congressional Research Service
7
Stormwater Permits: Status of EPA’s Regulatory Program
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.12 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 performance-
based 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,
2009.13
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).
A continuing aspect of the issue of interest 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
had 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, as well as in similar cases in Georgia and
Wisconsin, 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 May 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.14
12 U.S. Environmental Protection Agency, Office of Water, Technical Guidance on Implemementing the Stormwater
Runoff Requirements for Federal Projects Under Section 438 of the Energy Independence and Security Act, EPA 841-
B-09-001, December 2009, http://www.epa.gov/owow/NPS/lid/section438/pdf/final_sec438_eisa.pdf.
13 Executive Order 13514, “Federal Leadership in Environmental Energy and Economic Performance,” 71 Federal
Register 52117-52127, October 8, 2009.
14 United States v. Renton, W.D. Wash., No. C11-1156JLR, May 25, 2012.
Congressional Research Service
8
Stormwater Permits: Status of EPA’s Regulatory Program
Recent Developments: NRC Report and Potential
Regulatory Changes
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.15
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.
In response, 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
well as information on control, pollution prevention technologies, and BMPs applied to
stormwater discharges from newly developed and redeveloped sites.16
EPA is exploring regulatory options that would strengthen the regulatory program, including
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, EPA rules do not include specific management practices or standards to be implemented.
15 Supra note 5, p. 3.
16 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.
Congressional Research Service
9
Stormwater Permits: Status of EPA’s Regulatory Program
Other options that EPA is considering include 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. The rule is expected to focus on 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. As part of the national post-
construction stormwater rule, EPA has committed to consider supplemental provisions 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. EPA officials note that a number of states have
been developing their own stormwater management programs, particularly in the Northeast,
where lawsuits have pushed regulators, and in some high-precipitation Northwest states.
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.17 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. 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 states and municipalities that are concerned about
the possibility of a mandatory retrofit requirements that would impose a significant economic
burden on cities.18
EPA had been considering possible changes to the 1990 and 1999 stormwater rules since 1999.
But the effort progressed slowly until a deadline was set in a 2010 settlement with the
Chesapeake Bay Foundation.19 Under that settlement, EPA was expected to issue a proposed rule
in September 2011 and to promulgate a final rule by November 2012. The parties later agreed to
extend the deadline for a proposed rule to April 27, 2012. However, in July, EPA announced on its
website that it will propose its post-construction rule in June 2013, almost two years beyond the
original deadline mandated under the settlement agreement, and issue a final rule by December
2014. The rule has reportedly been delayed while the agency considers costs and benefits of its
proposal and ways 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.
17 U.S. Environmental Protection Agency, “Stakeholder Input; Stormwater Management Including Discharges from
New Development and Redevelopment,” 74 Federal Register 68617-68622, December 28, 2009.
18 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.
19 In addition to responding to the 2009 NRC report, EPA’s development of the stormwater rule is partly driven by the
terms of a 2010 settlement agreement with environmental advocacy groups, which forced the agency to issue a Total
Maximum Daily Load (TMDL) pollution control plan for the Chesapeake Bay. Fowler v. EPA, D.D.C. No. 1:09-cv-5,
May 11, 2010.
Congressional Research Service
10
Stormwater Permits: Status of EPA’s Regulatory Program
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
Congressional Research Service
11