Hawaii NPDES Permit (14-HI-b)
As authorized by the United States Environmental Protection Agency (EPA) under the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. Stormwater discharge permits are required for certain activities by EPA regulations at 40 CFR § 122.26(b)(14).
Clean Water Act approval is needed to engage in any activity that might materially alter the surrounding water supply, or to operate a facility that creates a liquid discharge into state or local water supplies. NPDES permits are required for all point source pollutant discharges into State waters and for three situations involving storm water: 1) storm water associated with construction activities; 2) storm water associated with industrial activities; and 3) storm water and certain non-storm water from Municipal Separate Storm Sewer Systems.
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-HI-b.1 – Will the Activity be Covered Under a General Permit
General permits cover multiple similar facilities located in the same geographic area. A general permit sets the same conditions for all dischargers covered under the permit. Applicants must read, understand and be able to comply with Hawaii Administrative Rules (HAR) Chapters 11-54 and 11-55. Applicants must determine if they can be covered under an NPDES general permit or an NPDES individual permit.
14-HI-b.2 to 14-HI-b.3– Will an Individual NPDES Permit be Required
An individual permit is facility-specific and designed to address only one facility. The developer submits a permit and the Hawaii Department of Health Clean Water Branch develops a permit for the specific facility.
14-HI-b.4 – Notice of Intent and Associated Documents
The director of the Department of Health must be notified when a person is seeking coverage under a general permit. The NOI is available at General Permit NOI webpage.
14-HI-b.5 to 14-HI-b.6 – Review Application Materials for Completeness
14-HI-b.7 – Should the Activity be Covered Under a NPDES General Permit
DOH-CWB determines if the project/activity should be covered under the applicable NPDES general permit. (30 calendar days from complete NOI.)
14-HI-b.8 – Notice of General Permit Coverage
If DOH-CWB determines that your project/activity should be covered under an NPDES general permit, a Notice of General Permit Coverage (NGPC) will be issued. The NGPC is an authorization to comply with the applicable NPDES general permit. When the NGPC is issued you must comply with all conditions in the NPDES general permit and NGPC.
14-HI-b.9 – Does the Developer Request NPDES Individual Permit Coverage
If DOH-CWB determines that your project/activity should not be covered under an NPDES general permit, you may request NPDES individual permit coverage by completing and submitting the NPDES individual application available at theCWB Forms webpage.
14-HI-b.10 – CWB-Individual NPDES Form C and Associated Documents
14-HI-b.11 to 14-HI-b.12 – Review Application Materials for Completeness
14-HI-b.13 – Tentative Determination to Issue or Deny NPDES Individual Permit Application
DOH-CWB prepares tentative determination to issue or deny NPDES individual permit application.
14-HI-b.14 – Send Tentative Determination to EPA for Concurrence
Tentative determination to issue or deny sent to EPA for concurrence within 180 calendar days from complete application.
14-HI-b.15 – Notice of application for NPDES permit or Notice of Public Hearing
Public notification (public notice or hearing) is required of the proposed issuance/denial of the NPDES permit. The Department of Health creates a notice that an application for an NPDES permit has been submitted or that DOH will hold a public hearing on the application. Thereafter the applicant publishes the notice of application or notice of hearing in the required newspaper; the applicant is responsible for all publication costs.
14-HI-b.17 - Submit Comments
The public may submit comments during the 30-calendar-day public notice comment period or the public hearing. If there are significant comments, the Department of Health may decide to hold a public hearing after the public notice comment period.
14-HI-b.18 – Hold Public Hearing on NPDES Permit Application
A public hearing may be requested by the applicant, or it may be scheduled by the Department of Health if many comments are received during the public comment period.
14-HI-b.19 – Address All Comments
The applicant must address all comments. These comments will be considered by the Department of Health with the application.
14-HI-b.20 to 14-HI-b.21 – Does DOH Approve the Application
The Hawaii Department of Health Clean Water Branch makes the final decision to award the NPDES permit.
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Hawaii Department of Health Office of Environmental Quality Control
Clean Water Branch Chief