To amend the Federal Water Pollution Control Act to provide for the comprehensive, coordinated and cost-effective management of urban wet weather flows on a watershed basis, including combined sewer, sanitary sewer and separate storm sewer discharges, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Urban Wet Weather Watershed Act of 1999."
SECTION 2. URBAN WATERSHED PLANNING
Title III (33 U.S.C. 1311 et seq.)The Act is amended by adding the following new Section 321:
321. URBAN WATERSHED PLANNING
(a) Findings and Purpose:
(1) It is the finding of Congress that:
(A) Wet weather discharges are intermittent, and the magnitude, frequency and duration of wet weather discharges depends not only on local climatic conditions but also on system design and capacity characteristics.
(B) Flow volumes, pollutant concentrations, and associated pollutant loads from wet weather discharges are highly variable.
(C) The water quality and environmental impacts from both dry weather and wet weather discharges are site-specific and watershed-specific. The effectiveness and costs of watershed management measures may also vary on a site-specific and watershed-specific basis.
(D) For many areas, existing chemical, physical, biological and other water quality criteria do not accurately reflect the effect of wet weather discharges on water usage and environmental quality. In some situations, existing criteria may not provide a reliable basis for prioritizing management decisions.
(E) A comprehensive approach to the management of wet weather flows on a watershed basis, based on the legitimate and exclusive role of local governments in land use planning, will result in systematic, incremental, more cost-effective and more rapid achievement of designated use benefits in receiving waters.
(F) An effective solution to the problems associated with wet weather flows can be attained through a unified regulatory program that employs a coordinated approach to rules, policies, and guidelines for wet weather flows and calls for the establishment of federal funding to implement that program.
(2) The purpose of this section is to encourage comprehensive, coordinated and cost-effective management of all urban wet weather flows within a watershed and to allow targeting of limited local fiscal resources first to the most serious receiving water problems or areas where greatest protection is needed and to provide federal funding on an equitable basis.
(b) DEVELOPMENT OF REGULATIONS - Not later than 3 years after the date of enactment of this subsection, the Administrator, in consultation with State and local governments and wastewater authorities shall issue regulations which establish a unified wet weather permitting program to address the combined effect of all urban wet weather flows, including combined sewer overflows, sanitary sewer overflows and municipal separate storm sewer systems, within a watershed or subwatershed and provide for the development and implementation of coordinated urban watershed management plans. This unified regulatory program will complement existing wet weather programs as an optional permitting approach for municipalities.
Such a unified wet weather permitting program shall at a minimum:
(1) establish procedures for the evaluation and approval of watershed management plans by the appropriate permitting authority or implementing agency;
(2) set forth the essential elements of an urban watershed management plan, including:
(A) identification of entities responsible for the development and implementation of watershed management plans, including cities, counties, regional sewer districts, or any other local government authorities with the capacity to carry out the responsibilities associated with the urban watershed management plan;
(B) initial and subsequent assessment of wet weather impacts on human health, aquatic resources, and water quality, and the causes and sources of such impacts;
(C) establishment of appropriate urban watershed or subwatershed geographic management units;
(D) prioritization by local authorities of the most important, addressable and highest priority problem areas and the lowest cost, most effective management measures for immediate implementation;
(E) development of short term and long term management measures;
(F) development of implementation schedules for both short term and long term management measures consistent with available funding; and
(G) development of methodologies to evaluate the effectiveness of short term and long term management measures, including progress review, provisions for management plan revisions generated at the local level, public reporting and stakeholder involvement.
(5) provide that compliance with wet weather management measures contained in an approved watershed management plan shall constitute compliance with water-quality based requirements of the Act;
(6) establish voluntary alternatives for watershed pollutant trading and for trading of control measures on wet weather discharges with other watershed activities, including nonpoint source controls;
(7) provide for the recognition and implementation of urban watershed management plans in NPDES permits through the development of permit conditions incorporating approved minimum controls and management measures in lieu of numeric effluent limitations.
SECTION 3. WET WEATHER WATER QUALITY STANDARDS
Section 304(a) is amended by adding at the end the following:
(9) DEVELOPMENT OF WET WEATHER CRITERIA-
(A) To reflect the episodic character of urban wet weather discharges from separate storm sewers, combined sewer overflows and sanitary sewer overflows, which result in significant variances in the volume, hydraulics, hydrology, and pollutant load associated with wet weather discharges, not later than December 31, 2002 the Administrator shall establish, as an element of the water quality standards established for navigable waters, wet weather criteria for conventional pollutants which protect the navigable waters from impairment of the designated beneficial uses caused by wet weather discharges.
(B) Not later than December 31, 2002, the Administrator shall report to Congress on the feasibility of establishing wet weather criteria for toxic pollutants or for modifying, refining or translating existing criteria for such pollutants based upon the magnitude, frequency and duration of wet weather flows.
(C) The wet weather discharge criteria to be established under this paragraph shall be developed in consultation with persons with expertise in the management of wet weather discharges (including officials of State and local government, industrial and commercial stormwater dischargers, and public interest groups).
(D) In connection with the development of wet weather discharge criteria, the Administrator shall: (1) develop, after a period of public comment, a guidance to the States on the refinement of designated uses to more accurately reflect the characteristics of waters impacted by urban wet weather flows, including the recognition of seasonal uses, temporary or wet weather uses; (2) provide technical and financial assistance to States and EPA regions to conduct such designated use refinements; and (3) submit a report to the relevant authorizing and appropriations committees of the House and Senate by December 1, 1999 on the progress of meeting the requirements set forth above.
SECTION 4. TOTAL MAXIMUM DAILY LOADS.
Section 303(d) is amended by adding at the end the following:
(4) In establishing the total maximum daily loads required under this section, each State shall estimate the pollutant reductions needed to implement the applicable water quality standards or to assure the protection of human health and propagation of a balanced indigenous population of fish, shellfish and wildlife by allocating a proportionate share of such reductions to each point and nonpoint source of such pollutants, both regulated and unregulated, commensurate with their relative contribution to watershed impact. The loads established for the waters identified under this section may also provide for the phased implementation of such reductions. In establishing necessary load reductions, the State authority (or EPA, where the Agency is the primary authority) must provide reasonable assurances that both point and nonpoint source control measures will be implemented.
SECTION 5. COMBINED SEWER OVERFLOWS.
Section 402 (33 U.S.C. 1342) of the Federal Water Pollution Control Act is amended by adding the following:
(q) COMBINED SEWER OVERFLOWS.—
(1) REQUIREMENT FOR PERMITS, ORDERS, AND DECREES- Each permit, order, or decree issued pursuant to this Act for a discharge from a combined storm and sanitary sewer shall conform to the Combined Sewer Overflow Control Policy signed by the Administrator on April 11, 1994.
(2) TERM OF PERMIT, ORDER, OR DECREE-
(A) AUTHORITY TO ISSUE- Notwithstanding any schedule for compliance authorized by section 301(b), or any permit limitation authorized by subsection (b)(1)(B) of this section, the Administrator or the State (in the case of a State with a program approved under subsection (b)) may issue or execute a permit, order, or decree consistent with this section for a discharge from a combined storm and sanitary sewer.
(B) SCHEDULE FOR COMPLIANCE-
(i) IN GENERAL- A permit, order, or decree issued pursuant to subparagraph (A) shall include a schedule for compliance, within a period of not to exceed 15 years, with a long-term control plan under the Control Policy referred to in paragraph (1).
(ii) EXCEPTION- Notwithstanding clause (i), a compliance schedule of longer than 15 years may be granted if the owner or operator demonstrates to the satisfaction of the Administrator or the State, as appropriate, reasonable further progress towards compliance with a long-term plan under the Control Policy and if the Administrator or the State, as appropriate, determines--
(I) that compliance within 15 years is not within the economic capability of the owner or operator; or
(II) that a longer period is otherwise appropriate.
(3) SAVINGS CLAUSE- Any administrative or judicial decree or order issued before the date of enactment of this subsection establishing any deadline, schedule, or timetable for the construction of treatment works for control of any discharge from a municipal combined sewer system may, at the request of the municipal owner or operator, be modified to extend any such deadline, schedule, or timetable to conform with the requirements of paragraph (2).
(4) WATER QUALITY STANDARDS-DESIGNATED USE REVIEW - Any permit, order, or decree issued pursuant to this Act providing for compliance with water quality based requirements contained in a long-term control plan under the Control Policy referred to in paragraph (1) may be amended or revised after the Administrator or the State, as appropriate, has completed the water quality standards-designated use review process called for in the Control Policy, including the adoption of any refinements needed to reflect the site-specific wet weather impacts of combined sewer overflows and to ensure that the long-term control plan provides for cost-effective compliance with water quality standards. Consideration shall be given to conducting these amendments or revisions on a watershed basis where appropriate.
SECTION 6. SANITARY SEWER OVERFLOWS.
Section 402 (33 U.S.C. 1342) is amended by adding at the end the following:
(r) SANITARY SEWER OVERFLOWS.-
(1) DEVELOPMENT OF REGULATIONS – Not later than 3 years after the date of enactment of this subsection, the Administrator, in consultation with State and local governments and water authorities shall issue regulations which establish a comprehensive program to control the municipal separate sanitary sewer overflows.
The program shall at a minimum:
(A) establish operational practices and measures to control and/or reduce sanitary sewer overflows to the maximum extent practicable, recognizing regional, technical and economic factors. These minimum measures shall constitute compliance with Section 301.
(B) establish a presumptive and demonstrative approach to comply with Section 302. A presumptive approach may be utilized to comply with Section 302 provided that such a presumption is reasonable in light of the data and analysis conducted in the characterization, monitoring, and modeling of the system.
(C) establish a national program for permitting collection systems which are connected to a publicly-owned treatment works, but which are not operated by the same municipal entity or local government that is responsible for treating the discharge. The program should be flexible to allow, but not mandate, delegation of permitting authority to the regional publicly-owned treatment works. A publicly-owned treatment works may also petition the Administrator for two separate permits, one for discharges from the treatment works and one for operation and maintenance of the collection system.
(2) ISSUANCE OF PERMITS. Each permit issued pursuant to this section for a discharge from a municipal separate sanitary sewer shall conform with the regulations developed under paragraph (1) and shall at minimum provide liability relief to permitted municipal separate sanitary sewer systems for those overflows which are determined to be unavoidable. Unavoidable sanitary sewer overflows include discharges that are unavoidable to prevent loss of life, personal injury, or severe property damage or the discharge was a temporary, exceptional incident beyond the reasonable control of the operator, such as discharges caused by: exceptional acts of nature, wet weather conditions beyond a system-specific control or remediation plan that is currently approved by the Administrator, third party actions that could not be reasonably prevented, blockages that could not be avoided through reasonable measures; and unforeseen sudden structural, mechanical or electrical failure that could not be avoided by reasonable measures.
(3) COMPLIANCE DEADLINE.- Notwithstanding any compliance schedule under section 301(b), or any permit limitation under subsection (b)(1)(B), the Administrator or a State with a program approved under subsection (b) may issue a permit pursuant to this section for a discharge from a municipal separate sanitary sewer due to stormwater inflows or infiltration. The permit shall include at a minimum a schedule for compliance with a long-term control plan under the policy developed under paragraph (1), for a term not to exceed 15 years.
(4) EXTENSION.- Notwithstanding the compliance deadline specified in paragraph (3), the Administrator or a State with a program approved under subsection (b) shall extend, on request of an owner or operator of a municipal separate sanitary sewer, the period of compliance beyond the last day of such 15-year period if the Administrator or the State determines that the compliance by such last day is not within the economic capability of the owner or operator, unless the Administrator or the State determines that the extension is not appropriate.
(5) EFFECT ON OTHER ACTIONS. – Before the effective date of the regulations under paragraph (1), the Administrator or Attorney General shall not initiate any administrative or judicial civil penalty action in response to a municipal separate sanitary sewer overflow due to stormwater inflows or infiltration, unless an overflow is demonstrated to be due to willful or negligent action or inaction and could have been prevented by reasonable operations and maintenance measures.
(6) SAVINGS CLAUSE. – Any consent decree or court order entered by a United States district court, or administrative order issued by the Administrator, before the date of the enactment of this subsection establishing any deadlines, schedules, or timetables, including any interim deadlines, schedules, or timetables, for the evaluation, design, or construction of treatment works for control or elimination of discharge from a municipal separate sanitary sewer shall be modified upon motion or request by any party to such consent decree or court order, to include appropriate deadlines, schedules, or timetables as provided in paragraphs (3) and (4).
SECTION 7. MUNICIPAL STORMWATER DISCHARGES
Section 402(p)(3)(B) (33 U.S.C. 1342(p)(3)(B)) is amended by adding at the end the following new subparagraph:
(iv) For the purposes of subparagraph (B)(iii), the term `maximum extent practicable' means applying management practices and other economically achievable measures for the control of the addition of pollutants from a municipal separate storm sewer system which reflect the greatest degree of pollutant reduction achievable through the application of the best available storm water control practices, technologies, processes, siting criteria, operating methods, or other alternatives that do not require the construction of treatment facilities.
(v) Notwithstanding any other provision of this Act, neither the Administrator nor the State, in the case of a State with authority to issue permits under this section, may require, in a permit issued for discharges from municipal storm sewers, compliance with numeric effluent limitations, whole effluent toxicity criteria, biological criteria, or fixed numeric pollutant load reductions based on total daily maximum load allocations.
(vi) A stormwater discharger operating under a permit continued in effect under this subparagraph shall not be subject to citizens suits under section 505.
SECTION 8. FUNDING
(1) In order to carry out the purposes of this Act:
(A) IN GENERAL- The Administrator may make grants to any municipality or municipal entity for planning, design, and construction of facilities to intercept, transport, or control separate storm, combined storm and sanitary sewer flows, for the planning and implementation of urban wet weather control measures and for the development and implementation of urban watershed management plans..
(B) FEDERAL SHARE- The Federal share of the cost of activities carried out using amounts from a grant made under subparagraph (A) shall be at least 55 percent of the cost. The non-Federal share of the cost may include, in any amount, public and private funds and in-kind services.
© AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated to carry out this paragraph $1,000,000,000 for fiscal year 1999, $2,000,000,000 for fiscal year 2000, and $3,000,000,000 for fiscal year 2001. Such sums shall remain available until expended.
(D) REPORTS- On or before January 1, 2001, and once every 2 years thereafter, the Administrator shall transmit to Congress a report containing recommended funding levels for the 2 fiscal years following the date of the report for activities relating to separate storm, combined storm and sanitary sewer flows described in subparagraph (A).
(2) GENERAL AUTHORITY
Subsection (a) of section 601 (33 U.S.C. 1381(a)) is amended to read as follows:
(a) GENERAL AUTHORITY- Subject to this title, the Administrator shall make capitalization grants to each State for the purpose of establishing a water pollution control revolving fund.
(3) PROJECTS ELIGIBLE FOR ASSISTANCE
Subsection (c) of section 603 (33 U.S.C. 1383(c)) is amended to read as follows:
(c) PROJECTS ELIGIBLE FOR ASSISTANCE-
(1) IN GENERAL- The funds available to each State water pollution control revolving fund (referred to in this section as the `fund') may be used only for providing assistance, for projects with respect to which the principal purpose is protecting and improving water quality, to a municipality, intermunicipal agency, interstate agency, State agency, or individual, to carry out 1 or more of the following activities:
(A) Implementing an approved management program under section 319.
(B) Implementing an approved conservation and management plan under section 320.
(C) Implementing a combined sewer overflow, sanitary sewer overflow, or separate storm sewer management program, or any combination thereof.
(D) Carrying out projects identified in an urban watershed management plan prepared pursuant to section 321.
(E) Performing research and demonstration projects for the management of urban wet weather flows on a watershed or subwatershed basis.