Federal EPA NPDES Permitting (14-FD-b)
The National Pollutant Discharge Elimination System (NPDES) regulations at Title 40 of the Code of Federal Regulations (CFR) 122.21(a) require that any person, except persons covered by general permits under 40 CFR 122.28, who discharges pollutants or proposes to discharge pollutants to waters of the United States must apply for a NPDES permit.
The United States Environmental Protection Agency administers the NPDES program. However, the EPA has delegated authority to most states in the country to administer their own discharge permit programs. To see the status of the state for your proposed project, see the State NPDES Program Authority Map. This flowchart will cover the process for states which do not have their own NPDES program (currently Idaho and New Mexico).
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.
EPA NPDES Permitting Process
14-FD-b.1 - Will the Project Require an Individual or a General NPDES Permit
If there is an existing general permit available which will encompass all of the proposed activities at the site, the developer will not need to apply for an individual NPDES permit. General permits ( 40 CFR 122.28) are permits developed for a specific category of dischargers within a specified geographic or political boundary. Using a general permit could simplify the permitting process for both EPA and the discharger. Unlike Section 10 and Section 404 general permits from the U.S. Army Corps of Engineers, NPDES permits are authorized by the EPA. Owners /operators may seek coverage under a general permit only if one has been issued that is applicable to the type of facility for which coverage is sought and the permit covers the facility’s activities. However, a facility that otherwise qualifies for a general permit may opt to apply for an individual permit.
14-FD-b.2 to 14-FD-b.3 - Notice of Intent (NOI)
In most cases, a facility seeking coverage under a general permit must seek coverage by submitting a Notice of Intent (NOI) to the appropriate EPA regional office. The following information is the minimum that must be provided in the NOI (however, specific general permits may require additional information):
- legal name and address of the owner or operator
- name and address of the facility
- type of facility or discharges
- the receiving stream(s)
The EPA has developed the Electronic NOI (eNOI) system for construction and industrial facilities that need to apply for coverage under the EPA's Construction General Permit (CGP) or Multi-Sector General Permit (MSGP).
14-FD-b.4 to 14-FD-b.5 - Is the Project Covered Under the Applicable General Permit
General permits may be adopted and approved by the EPA to regulate one or more categories or subcategories of discharges or disposal practices or facilities (40 CFR 122.28). The general permits must clearly identify the applicable conditions for each category or subcategory of discharges and may exclude specified sources or areas from coverage (40 CFR 122.28). Every general permit will also specify the required contents of each NOI to be covered under a general permit along with required deadlines.
The EPA will review the submitted NOI and make a determination whether the proposed project can fall under the regulation of the general permit.
14-FD-b.6 - Notify Applicant that Individual NPDES Permit is Necessary
If the project is not covered by the general permit, the EPA will notify the applicant that they will be required to submit an individual permit application. Notification that your project does not comply with a general permit is not a denial of the permit, the EPA is instead requiring that the project be reviewed under the individual permit regulations.
14-FD-b.7 - NPDES Permit Application
When a facility needs an individual NPDES permit, it must submit a permit application to the EPA. Application forms and requirements are specific to the type of facility and discharge. NPDES permit application requirements may be found in 40 CFR Part 122, Subpart B as well as on the EPA's Permit Applications and Forms webpage.
14-FD-b.8 to 14-FD-b.9 - Review Application Materials for Completeness
Every application submitted to the EPA for a new source is reviewed for completeness within 30 days of its receipt and applications for existing sources are reviewed within 60 days of receipt (40 CFR 124.3(c)). After this review, the EPA must notify the applicant in writing whether the application is complete. If the application is incomplete the EPA will include information necessary to make the application complete.
After the initial application review, the permit writer may request that an applicant submit other information needed to decide whether to issue a permit and for permit development. The requested information could include the following:
- Additional information, quantitative data, or recalculated data.
- Submission of a new form (if an inappropriate form was used).
- Resubmission of the application (if incomplete or outdated information was initially submitted).
14-FD-b.10 - Develop Effluent Limitations Based on State Water Quality Standards
Before developing a draft permit and fact sheet, the EPA permit writer will assemble and review any additional background information on the facility including:
- the current permit (in applicable)
- the fact sheet or statement of basis for the current permit (if applicable)
- discharge monitoring reports (DMRs)
- compliance inspection reports
- engineering reports
- correspondence or information on changes in plant conditions, problems, and compliance issues
The EPA may also require facility site visits to obtain additional information about the facility's operations, equipment or management practices. Site visits are also used to very application information.
Based on the relevant proposed facility characteristics and the applicable state water quality standards, the EPA will set individual effluent limitations for the proposed activity and incorporate them into the individual permit. Individual effluent limitations will vary dependent on the type of facility, location, and type of pollutants involved in the proposed activity.
14-FD-b.11 to 14-FD-b.12 - Has the State Issued a Section 401 Water Quality Certification for Proposed NPDES Permit
If the state has not issued a Section 401 water quality certification, the developer should seek to initiate the process immediately. EPA NPDES permits cannot be effective without state approval that the proposed activity will comply with state water quality standards. Section 401 of the Clean Water Act provides states with the legal authority to review an application or project that requires a federal license or permit (in this case a NPDES permit) that will result in a discharge into a water of the U.S.
14-FD-b.13 - Draft Permit and Fact Sheet/Statement of Basis
40 CFR 124.6 requires the Director of the EPA to create a draft permit once a preliminary decision on the proposed activity has been made. The draft permit will include the conditions specified within 40 CFR 122.41 as the conditions applicable to all NPDES permits along with any additional site-specific requirements.
The draft permit must be prepared along side a statement of basis which sets forth the reasoning for the EPA decision to issue or deny the permit (40 CFR 124.7). The statement of basis should describe the derivation of the conditions of the permit, reasons for them, reasons supporting the tentative decision and should be sent to the applicant and any other persons, upon request.
Finally, a fact sheet must be prepared for every major NPDES permit (40 CFR 124.8).
14-FD-b.14 to 14-FD-b.15 - Public Notice and Comment Period
14-FD-b.16 - Public Hearing
If, during the comment period, any person files a request for a public hearing, the EPA will hold a public hearing in accordance with 40 CFR 124.12. The EPA Director may slo hold a public hearing at their own discretion whether a hearing might clarify one or more issues involved in the permit decision.
14-FD-b.17 - Prepare Final Permit, Fact Sheet, and Administrative Record
At the close of the public comment period and any public hearing, EPA will consider all the information presented through comments and the public hearing in conjunction with all of the application materials and prepare the final permit, a revised fact sheet, and the administrative record. Final permits and the accompanying information for existing NPDES permits may be found at the EPA's online Permit Compliance System (PCS).
14-FD-b.18 - Final NPDES Permit
The developer should proceed with their proposed development of geothermal resources in accordance with all permit conditions including reporting and notification requirements. All NPDES permits are valid for no more than 5-year terms, so the developer should be aware of their duty to re-submit a NPDES application when the current permit expires.
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