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Regulatory and Permitting Information Desktop Toolkit

California NPDES Permit (14-CA-b)

A National Pollutant Discharge Elimination System (NPDES) permit is required for point source pollutants discharged into the surface waters of the United States. The NPDES permit program is delegated to California by the Environmental Protection Agency (EPA) under the Clean Water Act. In California, the NPDES permit program is implemented through the State Water Resources Control Board (SWRCB) and the nine Regional Water Quality Control Boards (RWQCBs). A developer will apply for a NPDES permit from the SWRCB or the RWQCB responsible for the area where the actual discharge of pollutants will occur. The California NPDES permitting process is administered in accordance with the applicable federal regulations. 23 CCR § 2235.2

A developer may apply for either a general NPDES permit or an individual NPDES permit. A general NPDES permit covers multiple facilities within a specific category. General permits are written to cover categories of point sources that have common elements such as facilities that involve the same or substantially similar types of operations, facilities that discharge the same types of wastes, or facilities that require the same effluent limits or operating conditions. General permits are only issued for projects within a specific geographical area such as city, county, or state boundaries. The SWRCB and the RWQCBs are responsible for creating general permit categories. A list of current general NPDES permit categories can be found at SWRCB General NPDES Permits.

A developer may apply for an individual NPDES permit if the developer does not have multiple projects or if the developer’s individual project does not fall within one of the general permit categories. An individual NPDES permit is specifically tailored to an individual proposed project for an effective period of no more than five years. A developer must renew the permit after the five year period has expired. Both the SWRCB and the RWQCBs issue individual NPDES permits, but the vast majority of individual permits are issued by the RWQCBs.

The developer should consult the SWRCB or the applicable RWQCB and apply for the NPDES permit early in the project in order to ensure smooth processing and avoid delays in receiving the permit. The permitting process takes approximately six months to complete, but may take longer depending on the nature of the discharge.

SWRCB General NPDES Permits

Waters of the United States

The definition of waters of the United States is applicable to the NPDES permit process through 40 C.F.R. § 122.2. Waters of the United States for purposes of the Clean Water Act, 33 USC 1251 et. seq. and its implementing regulations is defined in 40 CFR 230.3(o), establishing the jurisdictional waters under the Act. The definition of waters of the United States includes all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; and the territorial seas; as well as all tributaries to such waters.

The definition of waters of the United States extends to certain waters associated with jurisdictional waters (see 40 CFR 230.3(o)(1)(iv) through (vii). The definition includes all impoundments of jurisdictional waters. The definition includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark. The definition also includes waters with a significant nexus to jurisdictional waters including, Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands; and those waters within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial sea, as well as waters within 4,000 feet of jurisdictional waters.

The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description see 40 CFR 230.3(o)(2)).

"Waters of the United States" is defined broadly by regulation under the Clean Water Rule as developed by the EPA and USACE. The effective date for this new rule is August 28, 2015. The new rule modifies the regulatory definition to more precisely define jurisdictional waters under the CWA. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.

On August 27, 2015, the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule (see North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction). In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s) in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the new rule nationwide pending its own determination of its own exclusive jurisdiction to review the rule (see Ohio, et al. v. EPA, Order of Stay). If the court determines it has exclusive jurisdiction the stay will likely remain in place pending a determination on the merits of the case. The court anticipates it will make a jurisdictional determination within a few weeks of the date of its order to stay. Given this uncertainty, developers should anticipate continued litigation on this matter and continue to monitor the issue at the state and national level. The EPA provides information on the ongoing effort to implement the EPA Clean Water Rule Website.


NPDES Permit Process

14-CA-b.1 to 14-CA-b.2– Will the Project Discharge Pollutants into the Surface Waters of the United States from a Point Source?

Any proposed project that will discharge pollutants into the surface waters of the United States from a point source is required to obtain an NPDES permit. California has adopted the same definitions for pollutant and point source as the federal government. Cal. Wat. Code § 13373 The federal regulations define the term pollutant very broadly. Regulated pollutants include, but are not limited to, rock, sand, dirt, and agricultural, industrial, and municipal waste. 40 C.F.R. § 122.2 The term pollutant does not include sewage from vessels, or water, gas, or other materials injected into a well to facilitate production of oil or gas. 40 C.F.R. § 122.2

A point source is defined as any discernable, confined, and discrete conveyance, such as pipes or man-made ditches, from which pollutants are or may be discharged. 40 C.F.R. § 122.2 The definition of point source does not include storm water runoff.

Waters of the United States

The definition of waters of the United States is applicable to the NPDES permit process through 40 C.F.R. § 122.2. Waters of the United States for purposes of the Clean Water Act, 33 USC 1251 et. seq. and its implementing regulations is defined in 40 CFR 230.3(o), establishing the jurisdictional waters under the Act. The definition of waters of the United States includes all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; and the territorial seas; as well as all tributaries to such waters.

The definition of waters of the United States extends to certain waters associated with jurisdictional waters (see 40 CFR 230.3(o)(1)(iv) through (vii). The definition includes all impoundments of jurisdictional waters. The definition includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark. The definition also includes waters with a significant nexus to jurisdictional waters including, Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands; and those waters within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial sea, as well as waters within 4,000 feet of jurisdictional waters.

The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description see 40 CFR 230.3(o)(2)).

14-CA-b.3 to 14-CA-b.4 – Does the Project Qualify for a General NPDES Permit?

If the proposed project(s) qualifies for a general NPDES permit, the developer only has to submit a single application to the SWRCB or the applicable RWQCB. The general NPDES permit process is designed to allocate SWRCB and RWQCB resources in a more efficient manner and provide timely coverage for larger numbers of facilities in the same category. The SWRCB provides a list of general NPDES permits for California. Each general NPDES permit category has specific qualifications and instructions for applying depending on the type and location of the project. A developer should refer to the SWRCB General NPDES Permits list and contact the SWRCB or the RWQCB where the project will be located for more information.

SWRCB General NPDES Permits

14-CA-b.5 – Individual NPDES Permit Application

A developer must submit Form 200 in order to begin the application process for an individual NPDES permit. In addition to filing Form 200, the developer must also file all of the appropriate forms provided by the Environmental Protection Agency (EPA). The first form of the EPA application is Form 1 General Information. This form must be submitted by anyone applying for an individual NPDES permit. Along with Form 1 of the EPA application, the developer must submit any (at least one) of the following forms applicable to the developer’s project:

  • Form 2A Application for Permit to Discharge Municipal Wastewater from New and Existing Publicly Owned Treatment Works;
  • Form 2B Application for Permit to Discharge Wastewater from Concentrated Animal Feeding Operations and Aquatic Animal Production Facilities;
  • Form 2C Application for Permit to Discharge Wastewater – Existing Industrial Facilities (including manufacturing, commercial, mining, and silvicultural operations);
  • Form 2D Application for Permit to Discharge Process Wastewater – New Industrial Facilities (including manufacturing, commercial, mining, and silvicultural operations); and
  • Form 2E Application for Facilities that do not Discharge Process Wastewaters.

The developer must submit Form 200 and any applicable EPA Forms to the SWRCB or the applicable RWQCB at least 180 days before beginning any discharge activity.

Cal. Wat. Code § 13376

14-CA-b.6 to 14-CA-b.8 – Review Application for Completeness

Once the SWRCB or RWQCB receives the developer’s application, the SWRCB or the RWQCB reviews the initial application to ensure that all the required information is included and all the appropriate forms have been submitted. The SWRCB or the RWQCB will notify the developer within 30 days of any additional required submissions. If the application is incomplete, the developer must submit the additional information to the SWRCB or the RWQCB before the application process can proceed. Once the SWRCB or the RWQCB deems the application complete, the SWRCB or the RWQCB must forward the initial application to the EPA for consideration within 15 days.

40 C.F.R. § 124.3

14-CA-b.9 to 14-CA-b.11 – Review Application for Completeness

Upon receipt of the initial application, the EPA has 30 days to review the application materials to ensure all federal requirements have been met. If the application is incomplete, the EPA will either notify the developer directly or notify the SWRCB or the RWQCB of the deficiencies in the application. The developer must submit all the additional required information to the EPA before the application process can proceed.

40 C.F.R. § 124.3

14-CA-b.12 – Return Application to SWRCB or RWQCB with any Comments

Once the EPA deems the application complete, the EPA must notify the SWRCB or the RWQCB within 30 days that the application is ready for a decision with regards to the discharge. The SWRCB or the RWQCB must consider any comments or recommendations that the EPA has made concerning the proposed project.

NPDES Questions & Answers

14-CA-b.13 – Does the SWRCB or the RWQCB Approve the Discharge?

Once the EPA has returned the application to the SWRCB or the RWQCB for an initial determination, the SWRCB or the RWQCB must decide whether to issue the individual NPDES permit or to reject the discharge. If the SWRCB or the RWQCB reject the discharge, the developer may not proceed with the proposed project as planned.

40 C.F.R. § 124.6

14-CA-b.14 – Draft NPDES Permit

If the SWRCB or the RWQCB decides that the individual NPDES permit should be issued, the SWRCB or the RWQCB will prepare a draft NPDES permit. The draft permit must contain the conditions of the permit, all compliance schedules, and all monitoring requirements the developer will be subject to. Once the SWRCB or the RWQCB has prepared the draft NPDES permit, the SWRCB or the RWQCB forwards the draft to the EPA for review.

40 C.F.R. § 124.6

14-CA-b.15 to 14-CA-b.16 – Review Draft NPDES Permit

Once the EPA has received the draft NPDES permit, the EPA reviews the draft for federal compliance. The EPA has 30 days to object or submit comments on the draft NPDES permit and submit its review to the SWRCB or the RWQCB. The EPA may request an additional 60 days to review the draft NPDES permit if needed. If the EPA objects to the draft NPDES permit, the developer will receive notification of the objection and any reasons for the EPA’s denial of the permit. If the EPA denies the draft permit, the developer may not proceed with the proposed project as planned.

40 C.F.R. § 124.7

14-CA-b.17 – Notify Developer and Interested Parties of Public Hearing

If the EPA approves the draft NPDES permit, the SWRCB or the RWQCB sends the developer a notice of public hearing. The notice of public hearing alerts the developer of the EPA’s approval of the draft NPDES permit and the subsequent public hearing process. The SWRCB or the RWQCB also provides notice of the EPA’s approval and public hearing process to any interested parties that might provide comments on the proposed project.

40 C.F.R. § 124.10

14-CA-b.18 – Publish Public Notice in Local Paper

After the SWRCB or the RWQCB notifies the developer that the draft NPDES permit has been approved, the developer must publish the public hearing notice for one day in the largest circulated paper in the municipality or county where the discharge will occur. NPDES Questions & Answers The developer must submit proof of the publication to the SWRCB or the RWQCB within 15 days after publishing the public hearing notice. The developer must issue public notice at least 30 days before the SWRCB or RWQCB hold the public hearing in order to facilitate maximum participation from potentially affected and interested parties.

40 C.F.R. § 124.10

14-CA-b.19 – Hold Public Hearing

The SWRCB or the RWQCB arranges for and conducts the public hearing whenever the SWRCB or the RWQCB has decided that there is a significant degree of public interest in the draft NPDES permit, or whenever a public hearing would clarify one or more issues involved in the permit process. The procedure is unique to the SWRCB or the particular RWQCB.

40 C.F.R. § 124.12

14-CA-b.20 to 14-CA-b.22 – Does the SWRCB or the RWQCB Adopt the Draft NPDES Permit without Modifications?

Following the public hearing the SWRCB or the RWQCB votes on whether to approve the draft NPDES permit as originally proposed, or to modify the draft after consideration of public comments. The permit is approved with a majority vote. Once the SWRCB or the RWQCB votes to approve the draft NPDES permit, as originally proposed or as newly modified, the adopted permit is forwarded to the EPA for final approval.

NPDES Questions & Answers

14-CA-b.23 – Initiate EPA Review of Adopted Permit

Once the SWRCB or the RWQCB has sent the EPA the adopted NPDES permit, the EPA reviews the adopted permit to ensure the terms and conditions satisfy federal requirements. The EPA has 10 days to object to the adopted NPDES permit.

14-CA-b.24 to 14-CA-b.26– Does the EPA Object to the Adopted NPDES Permit?

If any objections to the adopted permit are made by the EPA during review, the EPA may work with the SWRCB or the RWQCB to resolve the objection and amend the adopted permit. If the objection with the permit cannot be resolved, the EPA has the authority to deny the permit. The SWRCB or the RWQCB may not issue the NPDES permit until all of the EPA’s objections have been satisfied.

NPDES Questions & Answers

14-CA-b.27 – Final NPDES Permit

The SWRCB or the applicable RWQCB is the agency responsible for issuing the NPDES permit. The SWRCB or the RWQCB may issue the NPDES permit after all of the EPA's concerns, if any, have been resolved. A new NPDES permit application must be submitted if there are any modifications to the discharge. Once the developer has been issued a NPDES permit, the developer may continue with the proposed project as planned.

NPDES Questions & Answers




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