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URBAN WET WEATHER WATERSHED ACT OF 1999

January 29, 1999 - FINAL DRAFT

     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. FINDINGS AND PURPOSE

  1. It is the finding of Congress that:
    1. Wet weather discharges from combined sewers, sanitary sewers, and separate storm sewer systems are intermittent and temporary, and the magnitude, frequency and duration of wet weather discharges depends not only on local climatic conditions and watershed topography, but also on system design and capacity characteristics.
    2. Flow volumes, pollutant concentrations, and associated pollutant loads from wet weather discharges are highly variable.
    3. 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.
    4. For many waterbodies, existing water quality standards do not accurately reflect the effect of wet weather discharges on water quality uses, human health risks, and environmental quality. The application of traditional, steady-states standards during wet weather events will result in a misleading indicator of water quality conditions during such events which are temporary and episodic in nature. In some situations, existing water quality standards may not provide a reliable basis for prioritizing management decisions.
    5. A comprehensive approach to the management of wet weather flows on an urban 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.
    6. An effective solution to the problems associated with wet weather flows can be attained through a unified regulatory program that employs a coordinated urban watershed management approach to rules, policies, and guidelines for wet weather flows and calls for the establishment of federal funding to implement that program.
    7. An effective urban watershed management approach requires proportionate controls on both point and nonpoint sources of pollution to protect the chemical, physical, and biological integrity of receiving waters.
  2. The purpose of this section is to authorize municipalities with the flexibility to unify the management of all urban wet weather flows within an urban watershed and to allow local prioritization and subsequent targeting of limited local fiscal resources in order to address the most serious receiving water quality problems or areas where greatest protection is needed and to provide federal funding on an equitable basis.

SECTION 3. URBAN WATERSHED PLANNING

Title III (33 U.S.C. 1311 et seq.) The Act is amended by adding at the end thereof the following new Section 321:

321. URBAN WATERSHED PLANNING

(a) States, municipalities, or other local governments are hereby authorized to prepare urban watershed plans for the management and control of wet weather discharges resulting from combined sewer overflows, sanitary sewer overflows or municipal separate sanitary sewer discharges. Such plans prepared by municipalities or other local governments shall be subject to review and approval by the State. Approved urban watershed management plans shall become part of the State continuing planning process under Section 303(e) of this Act.

(b) Urban watershed management plans shall include, but are not limited to, the following elements:

  1. identification of entities responsible for the development and implementation of urban watershed management plans, including cities, counties, regional sewer districts, or any other local government authorities with the capacity and jurisdiction to carry out the responsibilities associated with the urban watershed management plan;
  2. initial and subsequent assessment of wet weather impacts on human health, aquatic resources, and water quality, and the causes and sources of such impacts, or the reasons for non-attainment of the applicable water quality standards;
  3. following consultation with local officials establishment of appropriate urban watershed, subwatershed geographic management units, or ecoregions (if applicable);
  4. any available total maximum daily load allocations established under Section 303(d) of this Act insofar as the pollutant reductions are allocated to all point and nonpoint sources, both regulated and unregulated, commensurate with their proportionate contribution to the impacts on an urban watershed.
  5. prioritization by local urban watershed planning authorities (as identified in (b)(2)(A)) of the highest priority problem areas and the, most cost effective management measures for immediate implementation;
  1. allocation of proportionate shares of pollutant reduction to all point and nonpoint sources, both regulated and unregulated commensurate with their relative contribution to the impacts on an urban watershed;
  1. development of short term and long term management measures which may include pollutant trading under NPDES permits or other enforceable management measures;
  2. development of implementation schedules for both short term and long term management measures consistent with available funding; and
  3. 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.

(3) (5) provide that compliance with wet weather management measures contained in an approved urban watershed management plan approved by the Administrator and included as an enforceable conditions of an NPDES permit shall constitute compliance with water-quality and technology based requirements of the Act;

(4) (6) establish voluntary alternatives for watershed pollutant trading and for trading of control measures on wet weather discharges with other watershed activities, includingnonpoint source controls and stream restoration activities under terms that are equitable to both point and nonpoint sources;

(5) (7) provide for the recognition and implementation of urban watershed management plans in NPDES permits including unified permits through the development of permit conditions incorporating approved minimum controls, performance standards, and/or management measures, developed as part of Section 402(p), (q), and (r), in lieu of numeric effluent limitations.

SECTION 4. UNIFIED WET WEATHER PERMITTING. Section 402 of the Federal Water Pollution Control Act is amended to add at the end thereof a new subsection (q) as follows:

    1. Voluntary alternatives for pollutant trading and for trading of control measures on wet weather discharges with other watershed activities, including nonpoint source controls.
    2. Provide for the recognition and implementation of urban watershed management plans in NPDES permits including unified permits through the development of permit conditions incorporating approved controls, performance standards, and/or management measures developed as part of Section 402(p), (q), or (r).

SECTION 5. WET WEATHER WATER QUALITY STANDARDS

Section 304(a) is amended by adding at the end the following:

  1. DEVELOPMENT OF WET WEATHER CRITERIA-
    1. 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, temporary, interim or wet weather uses, and the establishment of interim uses pending the implementation of urban watershed management plans; (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, 2000 on the progress of meeting the requirements set forth above.
    2. To reflect the episodic hydrologic conditions and hydraulic response of wet weather discharges from separate storm sewers, combined sewer overflows and sanitary sewer overflows, as well as nonpoint sources, which result in significant variations in the volume, hydraulics, stream morphology, hydrology, and pollutant load associated with wet weather discharges, not later than December 31, 2002 the Administrator State shall establish, as an element of the water quality standards established for navigable waters, wet weather criteria variances for conventional pollutants which accounts for the temporary change in designated beneficial uses experienced during certain wet weather events.
    3. 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 and the variability of water quality during wet weather events due to the potential impacts from a combination of sources and flow conditions.
    4. The wet weather discharge criteria to be established under this paragraph shall be developed in consultation with persons with responsibility for the management of wet weather discharges and in the unique hydraulic, chemical, and biological conditions during certain wet weather events (including officials of State and local government, industrial and commercial stormwater dischargers, and public interest groups).

      5. SECTION 6. TOTAL MAXIMUM DAILY LOADS.

      Section 303(d) is amended by adding at the end the following:

    5. State Authority. In establishing necessary load reductions The State (or EPA, where the Agency is the primary authority) must first provide assurances that enforceable authority exists for the control of both point and nonpoint sources. Or, where such authority does not exist, the State authority shall establish sufficient enforceable authority over point and nonpoint sources. prior to allocating load reductions.
    6. Pollutant Control Allocation Methodology. In addition, each States shall allocate pollutant load reductions for each point and nonpoint source of such pollutants, both regulated and unregulated, commensurate with their proportionate contribution to watershed impact. shall estimate the pollutant load 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 and allocate a proportionate share of such reductions to each point and nonpoint source of such pollutants, both regulated and unregulated, commensurate with their relative proportionate contribution to watershed impact.
    7. Implementation. The pollutant load reductions allocated established for the waters identified under this section must recognize the load reductions already achieved through previous point source controls and should also provide for the phased implementation for reducing pollutant loads as established pursuant to this section. when necessary.

      8. SECTION 7. 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.-

    8. 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.
    9. TERM OF PERMIT, ORDER, OR DECREE-
      1. 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.
      2. SCHEDULE FOR COMPLIANCE-
        1. 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).
        2. 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--
          1. that compliance within 15 years is not within the economic capability of the owner or operator; or (II) that a longer period is required to comply with long term control objectives which are more restrictive than the Control Policy; or,
          2. that a longer period is otherwise appropriate.
    10. 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).
    11. 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 and to determining cost-effectiveness on a watershed basis where appropriate, consistent with Section 321(b), and to developing water quality standards which are reflective of the characteristics of waters impacted by urban wet weather flows, consistent with Section 304(a)(9).

      12. Section 304 (33 U.S.C. 1314) of the Federal Water Pollution Control Act is amended by adding the following:

    12. For the purposes of this subsection and Section 303(b)(1)(B), publicly owned treatment works for combined sewer systems shall consist of those facilities necessary to treat maximum dry weather wastewater flow and incremental wet weather flows equivalent to the wet weather flows treated by separate sewer systems. The Administrator shall provide guidance for making the capacity determinations necessary to identify the portion of the treatment facilities subject to the definition of secondary treatment specified in paragraph (1) of this subsection. Treatment facilities located at publicly owned treatment works and necessary to treat combined sewer flows exceeding those specified above shall be considered combined sewer overflow treatment facilities.

      13. SECTION 8. SANITARY SEWER OVERFLOWS.

      Section 402 (33 U.S.C. 1342) is amended by adding at the end the following:

      r. SANITARY SEWER OVERFLOWS.-

    13. 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:
      1. allow authorize operators of municipal separate sanitary sewer systems to develop a separate sewer system control plan that includes standards, operational practices, and measures to control and/or reduce sanitary sewer overflows to the maximum reasonable extent practicable, recognizing regional, technical, and economic factors. Compliance with a system-specific control plan that is included as a condition of a permit shall constitute compliance with Section 301. For the purposes of this subparagraph, the term "maximum extent practicable" means the greatest degree of pollutant reduction achievable through the application of the best available, technically feasible, and economically achievable management practices, technologies, processes, siting criteria, operating methods, or other alternatives that do not require the construction of publicly owned treatment works.
      2. A presumption approach, which stipulates that any permittee that meets the minimum operational practices and measures defined in subsection (A) shall be presumed to provide an adequate level of control to meet the water quality-based requirements of the Act, 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. Alternatively, a demonstration approach may be used for permittees which can demonstrate that a control program not designed to meet the operational practices and measures defined in subsection (A) is adequate to meet the water quality-based requirements of the Act.
      3. In order to further minimize overflows from the collection system, 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 local or 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 discharges from the collection system. Municipal entities or local governments responsible for managing collection system s may petition the Administrator for the development and issuance of a general permit covering the control of discharges from such collection systems.
    14. 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 necessary 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 plan in an approved facility plan or other 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 are beyond the control of the permittee.
    15. 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 regulations developed under paragraph (1), for a term not to exceed 15 years.
    16. 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.
    17. 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.
    18. 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 may 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).

      19. SECTION 9. 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 subparagraphs and the addition of new Section 402(p)(4):

    19. For the purposes of subparagraph (B)(iii), the term 'maximum extent practicable' means the greatest degree of pollutant reduction achievable through the application of the best available, technically feasible, and economically achievable storm water control practices, technologies, processes, siting criteria, operating methods, or other alternatives that do not require the construction of treatment works. This definition applies to any municipal separate storm sewer system covered under Section (2)(C), (D), or (E) of this section or as a result of regulations issued pursuant to subsection (6).
    20. 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. Permit compliance is to be based on the implementation of management practices.
    21. Any violation with respect to which the Administrator or the State has commenced and is diligently prosecuting an action under this subsection, or for which the Administrator has issued a final order and the violator has either paid a penalty or fine assessed under this subsection or is subject to an enforceable schedule of corrective actions, shall not be the subject of an action under Section 505.
    22. Notwithstanding the provisions of Section 402(o), any administrative or judicial decree or order issued before the date of enactment of this subsection which exceeds the requirements of this subsection shall be subject to revision in conformance with subparagraphs (iv) and (v).
    23. Notwithstanding any other provision of law, a permit issued to the owner or operator of a municipal separate storm sewer system shall cover all municipal and municipal-related activities in the affected jurisdiction including any "industrial facilities" owned and/or operated by the permittee.
    24. The provisions of Section 313 are applicable in their entirety to this subsection.
    25. There is authorized to be appropriated to carry out research and demonstration programs with respect to control of pollutants from separate storm sewer systems, $10,000,000 for each fiscal year beginning in 1999 2000. Of this amount, not less than 75 percent shall be allocated to municipalities for the purpose of demonstrating and/or determining controls that are cost-effective in reducing such pollutants from urban stormwater runoff.

SECTION 10. FUNDING

Clean Water Grants. The Federal Water Pollution Control Act is amended at the end thereof to add a new title VII, Clean Water Grants: TITLE VII CLEAN WATER GRANTS PROGRAM

    • Section 701. The Administrator may make grants to any municipality or public entity for planning, design, and or 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. The grants may only be awarded to a municipality, intermunicipal agency, interstate agency, or State agency, or individual, to carry out 1 or more of the following activities:
      1. Implementing an approved management program under section 319.
      2. Implementing an approved conservation and management plan under section 320.
      3. Implementing a combined sewer overflow, sanitary sewer overflow, or separate storm sewer management program, or any combination thereof, including retroactive funding of existing management programs.
      4. Preparing urban watershed plans and implementing projects identified in an urban watershed management plan prepared pursuant to section 321.
      5. Complying with additional pollutant reductions required as part of a waste load allocation or load allocation prepared pursuant to Section 303(d).
      6. Performing research, demonstration projects and pilot studies relating to the management of urban wet weather flows on a watershed or subwatershed basis.
    • Section 702. The Federal share of the cost of activities carried out using amounts from a grant made under section 701 shall be at least 55 percent [Question: Should this percentage be lower to allow more communities to take advantage of the grants??] of the cost. The non-Federal share of the cost may include, in any amount, public and private funds and in-kind services.
    • Section 703. There is authorized to be appropriated to carry out this paragraph $1,000,000,000 for fiscal year 2000, $2,000,000,000 for fiscal year 2001, and $3,000,000,000 for fiscal year 2002. Such sums shall remain available until expended. This subsection hereby authorizes funding based on the recommendations of the Administrator beyond fiscal year 2002 in an amount not to be less than $1,000,000,000.