II 

109TH CONGRESS 

2D SESSION S. 4101 

To amend the Federal Water Pollution Control Act to provide more effective 

permitting and enforcement mechanisms for stormwater discharges associated with residential construction activity. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 7, 2006 

Mr. INHOFE (for himself and Mr. CARPER) introduced the following bill; which 

was read twice and referred to the Committee on Environment and Public 

Works 

A BILL 

To amend the Federal Water Pollution Control Act to provide more effective permitting and enforcement mechanisms for stormwater discharges associated with residential construction activity. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Stormwater Enforce5 ment and Permitting Act of 2006’’. 


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1 SEC. 2. DEFINITIONS. 

2 Section 502 of the Federal Water Pollution Control 

3 Act (33 U.S.C. 1362) is amended by adding at the end 

4 the following: 

5 ‘‘(25) RESIDENTIAL CONSTRUCTION ACTIV6 ITY.—The term ‘residential construction activity’ 

7 means a construction activity associated with the de8 velopment and construction of housing of any type 

9 (including structures accessory or appurtenant to 

10 the housing and any facilities or infrastructure nec11 essary to serve the housing). 

12 ‘‘(26) OPERATOR.—The term ‘operator’ means, 

13 with respect to a site at which a residential con14 struction activity is being or will be carried out, a 

15 person (including a governmental entity) that— 

16 ‘‘(A) has operational control over construc17 tion plans and specifications (including the abil18 ity to make modifications to those plans and 

19 specifications); or 

20 ‘‘(B) has day-to-day operational control 

21 over the construction activity that is necessary 

22 to ensure compliance with any applicable permit 

23 conditions and other regulatory requirements 

24 under this Act.’’. 


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1 SEC. 3. GREATER SPECIFICITY IN INFORMATION REQUESTS 

2 AND OPPORTUNITY FOR CORRECTIVE AC3 TION. 

4 (a) INSPECTIONS, MONITORING, AND ENTRY.—Sec5 tion 308(a)(4) of the Federal Water Pollution Control Act 

6 (33 U.S.C. 1318(a)(4)) is amended— 

7 (1) in subparagraph (A), by striking ‘‘and’’ at 

8 the end; 

9 (2) in subparagraph (B), by striking the period 

10 at the end and inserting ‘‘; and’’; and 

11 (3) by adding at the end the following: 

12 ‘‘(C) for purposes of obtaining information 

13 under subparagraph (A), the Administrator 

14 shall specify each point source for which infor15 mation is sought if the point source is associ16 ated with residential construction activity.’’. 

17 (b) CORRECTIVE ACTION FOR RESIDENTIAL CON18 STRUCTION SITES.—Section 309 of the Federal Water 

19 Pollution Control Act (33 U.S.C. 1319) is amended by 

20 adding at the end the following: 

21 ‘‘(h) CORRECTIVE ACTION FOR RESIDENTIAL CON22 STRUCTION SITES.— 

23 ‘‘(1) CORRECTIVE ACTION.— 

24 ‘‘(A) IN GENERAL.—Except as provided in 

25 subparagraph (B), in the course of an inspec26 tion of a site at which a residential construction 


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1 activity is being or will be carried out, or based 

2 on information obtained relating to such a site, 

3 under section 308(a), if the Administrator or 

4 an authorized representative of the Adminis5 trator discovers any violation of a permit condi6 tion relating to the site that may be rectified by 

7 modifying, revising, or supplementing records 

8 or paperwork, the Administrator or representa9 tive shall provide the operator with written noti10 fication of the basis for the violation, including 

11 specific measures to achieve compliance and a 

12 reasonable opportunity to correct any identified 

13 violation, before the exercise of any authority 

14 under this section. 

15 ‘‘(B) EXCEPTIONS.—An opportunity de16 scribed in subparagraph (A) shall not be pro17 vided to— 

18 ‘‘(i) the operator of any residential 

19 construction site that was required, and 

20 subsequently failed, to obtain coverage 

21 under a permit issued under section 

22 402(a); or 

23 ‘‘(ii) a record or paperwork violation 

24 that resulted in a violation of a water qual25 ity standard adopted under section 303. 


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1 ‘‘(2) SUBSEQUENT VIOLATION.—If the Admin2 istrator or an authorized representative of the Ad3 ministrator subsequently inspects or requests infor4 mation regarding a residential construction site for 

5 which an opportunity for corrective action was pro6 vided under paragraph (1)(A) and discovers a viola7 tion of the same permit condition that was corrected 

8 under paragraph (1)(A) or for which an opportunity 

9 to correct was provided, the operator of the site shall 

10 not be provided a further opportunity to correct the 

11 violation under this subsection before initiation of an 

12 enforcement action. 

13 ‘‘(3) LIMITATION ON AUTHORITY OF ADMINIS14 TRATOR.—If during any subsequent inspection, an 

15 operator of a residential construction site is found to 

16 not be in compliance after receiving a notification, 

17 consultation, and order to comply from the Adminis18 trator in accordance with paragraph (1)(A), the Ad19 ministrator may exercise any authority under this 

20 section with respect to the operator and construction 

21 site.’’. 

22 (c) LIMITATION ON ACTIONS DURING OPPORTUNITY

23 TO CORRECT.—Section 309(g)(6) of the Federal Water 

24 Pollution Control Act (33 U.S.C. 1319(g)(6)) is amended 

25 by striking subparagraph (A) and inserting the following: 


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1 ‘‘(A) LIMITATION ON ACTIONS UNDER

2 OTHER SECTIONS.— 

3 ‘‘(i) IN GENERAL.—Except as pro4 vided in clause (ii), action taken by the Ad5 ministrator or the Secretary, as the case 

6 may be, under this subsection shall not af7 fect or limit the authority of the Adminis8 trator or Secretary to enforce any provi9 sion of this Act. 

10 ‘‘(ii) EXCEPTIONS.—A violation shall 

11 not be the subject of a civil penalty action 

12 under subsection (d), section 311(b), or 

13 section 505 if— 

14 ‘‘(I) the Administrator or the 

15 Secretary has commenced and is dili16 gently prosecuting an enforcement ac17 tion under this subsection with re18 spect to the violation; 

19 ‘‘(II) a State has commenced and 

20 is diligently prosecuting an enforce21 ment action under a State law com22 parable to this subsection with respect 

23 to the violation; 

24 ‘‘(III) the Administrator, the 

25 Secretary, or the State has issued a 


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1 final order with respect to the viola2 tion that is not subject to further ju3 dicial review and the violator has paid 

4 a penalty assessed under this sub5 section, or such comparable State law, 

6 as the case may be; or 

7 ‘‘(IV) the Administrator or an 

8 authorized representative of the Ad9 ministrator has provided the operator 

10 of a residential construction site an 

11 opportunity to correct the violation 

12 under subsection (h).’’. 

13 SEC. 4. PAPERWORK LIMITATIONS FOR RESIDENTIAL CON14 STRUCTION SITES. 

15 Section 402(l) of the Federal Water Pollution Control 

16 Act (33 U.S.C. 1342(l)) is amended by adding at the end 

17 the following: 

18 ‘‘(3) STORMWATER RUNOFF FROM RESIDEN19 TIAL CONSTRUCTION SITES.— 

20 ‘‘(A) IN GENERAL.—The Administrator 

21 shall neither require a permit, nor directly or 

22 indirectly require any State to require a permit, 

23 under this section for stormwater runoff from 

24 any site at which a residential construction ac25 tivity is being or will be carried out if— 


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1 ‘‘(i)(I) the runoff enters a municipal 

2 separate storm sewer system that is cov3 ered by a permit to which subsection (p) 

4 applies; and 

5 ‘‘(II) the operator of the site is in 

6 compliance with requirements imposed by 

7 the permittee for the system to control 

8 stormwater runoff; or 

9 ‘‘(ii) the site, during the period of the 

10 residential construction activity, has mini11 mal potential for soil erosion caused by 

12 rainfall or overland flow because of soil 

13 type, geology, quantity and force of pre14 cipitation, and other conditions as cal15 culated in accordance with subparagraph 

16 (B). 

17 ‘‘(B) MINIMAL POTENTIAL FOR SOIL ERO18 SION.—For the purpose of this paragraph, a 

19 residential construction site shall be considered 

20 to have minimal potential for soil erosion if the 

21 erosivity factor for the site during the period of 

22 residential construction activity is less than 5, 

23 as calculated based on the latest version of the 

24 revised universal soil loss equation developed by 

25 the Department of Agriculture.’’. 


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1 SEC. 5. FEDERAL ENFORCEMENT; NOTIFICATION TO POINT 

2 SOURCE OPERATORS AT RESIDENTIAL CON3 STRUCTION SITE. 

4 (a) FEDERAL ENFORCEMENT.—Section 402(p) of 

5 the Federal Water Pollution Control Act (33 U.S.C. 

6 1342(p)) is amended by adding at the end the following: 

7 ‘‘(7) FEDERAL ENFORCEMENT OF STATE PER8 MITS AUTHORIZING STORMWATER DISCHARGES

9 FROM RESIDENTIAL CONSTRUCTION ACTIVITY.— 

10 ‘‘(A) GOVERNING STATE PERMIT AND REG11 ULATIONS.—With respect to a permit issued by 

12 a State under a program approved under sub13 section (b) and authorizing a stormwater dis14 charge from a site at which a residential con15 struction activity is being or will be carried out, 

16 the exercise by the Administrator of authority 

17 under section 309 shall be— 

18 ‘‘(i) in coordination with the State 

19 that issued the applicable permit to be en20 forced; and 

21 ‘‘(ii) limited to enforcement of— 

22 ‘‘(I) the terms and conditions of 

23 the permit and any implementing reg24 ulations promulgated by the State; 

25 and 


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1 ‘‘(II) any enforcement policy, 

2 protocol, or practice adopted or imple3 mented by the State. 

4 ‘‘(B) NO EFFECT ON AUTHORITY.— 

5 ‘‘(i) IN GENERAL.—Nothing in this 

6 section affects any authority of the Admin7 istrator under section 308, including the 

8 authority to inspect and enter a site at 

9 which a residential construction activity is 

10 being or will be carried out, or otherwise 

11 investigate a potential violation of a permit 

12 issued under subsection (b). 

13 ‘‘(ii) VIOLATION OF PERMIT.—Viola14 tion of a permit authorizing a stormwater 

15 discharge from a site described in clause 

16 (i) based on information obtained by the 

17 Administrator under section 308 may re18 sult in the exercise of any authority of the 

19 Administrator under section 309. 

20 ‘‘(C) LIMITATION ON TRANSFERS TO

21 STATES.—If, as a result of any action brought 

22 under section 309, the Administrator receives 

23 or is awarded a fine or penalty for violation of 

24 a permit issued under this section by a State 

25 for a site on which a residential construction 


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1 activity is being or will be carried out and for 

2 which the exercise of authority under section 

3 309 was in accordance with subparagraph (A), 

4 and if the State that issued the permit does not 

5 participate in the action, the Administrator may 

6 not transfer, disburse, allocate, or otherwise pay 

7 all or any part of the fine or penalty to the 

8 State.’’. 

9 (b) NOTIFICATION TO POINT SOURCE OPERATORS AT

10 RESIDENTIAL CONSTRUCTION SITES.—Section 402(p) of 

11 the Federal Water Pollution Control Act (33 U.S.C. 

12 1342(p)) (as amended by subsection (a)) is amended by 

13 adding at the end the following: 

14 ‘‘(8) NOTIFICATION OF PERMIT REQUIREMENTS

15 FOR STORMWATER DISCHARGES FROM RESIDENTIAL

16 CONSTRUCTION SITES.— 

17 ‘‘(A) STORMWATER INFORMATIONAL PAM18 PHLET PROGRAM.—Not later than 180 days 

19 after the date of enactment of this paragraph, 

20 the Administrator shall establish, by regulation, 

21 a program that will provide for development, 

22 and distribution to operators of residential con23 struction sites, of an informational pamphlet. 

24 ‘‘(B) PAMPHLET CONTENTS.—Under the 

25 program, operators of residential construction 


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1 sites shall receive an informational pamphlet 

2 that— 

3 ‘‘(i) explains, at a minimum, permit4 ting requirements under this section for 

5 stormwater discharges from a site at which 

6 a residential construction activity is being 

7 or will be carried out, including— 

8 ‘‘(I) the permitting requirements 

9 of subsections (a) and (b) and this 

10 subsection and any applicable regula11 tions promulgated to carry out this 

12 section; and 

13 ‘‘(II) fines and penalties that 

14 may arise from violations of those re15 quirements; and 

16 ‘‘(ii) includes contact information for 

17 appropriate permitting authorities. 

18 ‘‘(C) DEADLINE FOR PAMPHLET DEVELOP19 MENT.—Under the program— 

20 ‘‘(i) a pamphlet shall be developed for 

21 distribution not later than 180 days after 

22 the date of promulgation of the regulations 

23 establishing the program; 


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1 ‘‘(ii) operators of residential construc2 tion sites shall be informed of the avail3 ability of the pamphlets; and 

4 ‘‘(iii) a pamphlet shall be given to an 

5 operator of a residential construction site 

6 at the earliest appropriate point in the 

7 process under which the operator is seek8 ing approval from a local government to 

9 carry out a residential construction activ10 ity. 

11 ‘‘(D) CONSULTATION.—The Administrator 

12 shall consult with State and interstate water 

13 pollution control administrators and other af14 fected interests in establishing the program.’’. 

15 SEC. 6. GENERAL PERMITS. 

16 Section 402 of the Federal Water Pollution Control 

17 Act (33 U.S.C. 1342) is amended by adding at the end 

18 the following: 

19 ‘‘(r) GENERAL PERMITS ON A STATE, REGIONAL, OR

20 NATIONWIDE BASIS.— 

21 ‘‘(1) IN GENERAL.—In carrying out responsibil22 ities and functions of the Administrator or a State 

23 under a program approved under subsection (b) re24 lating to the discharge of pollutants under this sec25 tion, the Administrator or the State may issue a 


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1 general permit on a State, regional, or nationwide 

2 basis to cover any category of discharges, sludge use, 

3 disposal practices, or facilities. 

4 ‘‘(2) GENERAL PERMIT TERM.—No general per5 mit issued under this section shall be for a period 

6 of more than 5 years beginning on the date of 

7 issuance of the general permit. 

8 ‘‘(3) NOTICE.—Before issuing a general permit 

9 under this section, the Administrator or a State 

10 shall provide to the public notice and opportunity to 

11 comment on the general permit for a period of not 

12 less than 45 days. 

13 ‘‘(4) REVIEW NOT REQUIRED.—The Adminis14 trator or a State shall not be required to specifically 

15 review, approve, or provide notice and an oppor16 tunity for a public hearing and comment on any ap17 plication for a discharge under a general permit 

18 issued under this section. 

19 ‘‘(5) EFFECTIVE PERIOD FOR PREEXISTING

20 GENERAL PERMITS.—Any general permit issued 

21 under this section by the Administrator or a State 

22 before the date of enactment of this subsection shall 

23 remain in effect under the terms and conditions in 


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1 effect on the date of issuance of the general per2 mit.’’. 

Æ 


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