Utah Pollutant Discharge Elimination System (14-UT-b)
Water pollution degrades surface waters making them unsafe for drinking, fishing, swimming, and other activities. Under the Clean Water Act, the United States Environmental Protection Agency (EPA) has delegated authority to the Utah Division of Water Quality (DWQ) for the permit program controls under the National Pollutant Discharge Elimination System. This program in Utah is called the Utah Pollutant Discharge Elimination System (UPDES).
DWQ, within the Utah Department of Environmental Quality, controls water pollution by regulating point sources that discharge pollutants into the waters of the United States through the UPDES system. 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.
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.
Pollutant Discharge Elimination System Process
14-UT-b.1 – UPDES Antidegradation Review, See Flowchart 14-UT-e
Antidegradation reviews (ADRs) are required, as part of the permitting process, for any action that has the potential to degrade water quality. Activities subject to ADRs include any activities that require a permit or water quality certification pursuant to federal law. This requirement includes the issuance of any UPDES permit or UPDES permit reissuance. ADR reviews for Category 3 waters are conducted at two levels, which are referenced in U.A.C. R317-2-3 as Level I and Level II reviews.
14-UT-b.2 – Will the Project Require an Individual UPDES Permit
Any person who requires a permit under the UPDES program shall complete, sign and submit to the Executive Secretary of DWQ an application for the permit as required under U.A.C. R317-8-3.1. Applications are not required for UPDES general permits.
14-UT-b.3 to 14-UT-b.4 – Notice of Intent to be Covered by General Permit
To see a list of Utah general permits and information about their requirements, see the DEQ UPDES Forms Website for more information. Developers choosing to be covered by a general permit shall submit written notification to the Executive Secretary in the appropriate time required as indicated in U.A.C. R317-8-6.3.
One specific form of general permit that is likely to be required for any energy project is the construction storm water permit. This permit is governed by the UPDES program as a general permit, however it is covered in section 6-UT-b.
14-UT-b.5 to 14-UT-b.6 - Does the Project Comply With General Permit Conditions
If the proposed project does not comply with any existing general permit, the developer should consider whether the proposed scope of project should change to meet general permit conditions, or whether an individual permit will be necessary. If the permit meets the general permit conditions, DWQ will notify the applicant that their project meets the criteria and they may proceed with operation under the conditions of the specific general permit. (U.A.C. R317-8-2.5(b)
14-UT-b.7 – UPDES Permit Application
In Utah, developers should use the appropriate standard EPA application form(s) for applying for a UPDES Permit. (U.A.C. R317-8-3.1(10)). The forms, along with guidance for filling out an individual UPDES permit application, can be accessed at the DEQ UPDES Forms Website.
14-UT-b.8 to 14-UT-b.9 – Review Application Materials for Completeness
The Executive Secretary of DWQ will not begin the processing of a permit until the applicant has fully complied with the application requirements for the permit, as required by U.A.C. R317-8-3.1(5)-(6).
Each application submitted by a UPDES new source or UPDES new discharger should be reviewed for completeness by DWQ within thirty (30) days of its receipt. Upon completing the review, the Executive Secretary shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Executive Secretary will list the information necessary to make the application complete in the notification to the applicant. (U.A.C. R317-8-6.1(4)).
After the application is completed, the DWQ Executive Secretary may request additional information from an applicant when necessary to clarify, modify, or supplement previously submitted material. If an applicant fails or refuses to correct deficiencies in the application, the permit may be denied and appropriate enforcement actions may be taken under the Utah Water Quality Act. (U.A.C. R317-8-6.1(4)).
14-UT-b.10 – Site Visit (As Necessary)
If the DWQ Executive Secretary decides that a site visit is necessary for any reason in conjunction with the processing of an application, the applicant will be notified and a date scheduled for the visit (U.A.C. R317-8-6.1(6)).
14-UT-b.11 – Prepare and Mail Project Decision Schedule to Applicant
For each application from a major facility new source, or major facility new discharger, the DWQ Executive Secretary will prepare and mail to the applicant a project decision schedule. The schedule will specify target dates by which the Executive Secretary intends to:
- (a) Prepare a draft permit;
- (b) Give public notice;
- (c) Complete the public comment period, including any public hearing; and
- (d) Issue a final permit.
14-UT-b.12 – Draft UPDES Permit
Once an application is complete, DWQ will tentatively decide whether to prepare a draft permit or to deny the application. If the decision is to deny the permit application, DWQ will issue a notice of intent to deny (a notice of intent to deny is considered a “draft permit”) and follow the same procedures for public notice and comment of the agency final decision. (U.A.C. R317-8-6.3)).
- (a) All conditions under U.A.C. R317-8-4.1;
- (b) All compliance schedules under U.A.C. R317-8-5.2;
- (c) All monitoring requirements under U.A.C. R317-8-5.3;
- (d) Effluent limitations, standards, prohibitions, standards for sewage sludge use or disposal, and conditions under U.A.C. R317-8-3, 8-4, 8-5, 8-6, and 8-7 and all variances that are to be included.
All draft permits are accompanied by a statement of basis or fact sheet and are be based on the administrative record, publicly noticed, and made available for public comment. DWQ will give notice of opportunity for a public hearing, issue a final decision and respond to comments. A request for an adjudicatory proceeding may be made pursuant to U.A.C. R317-9 following the issuance of a final decision.
A statement of basis is prepared for every draft permit for which a fact sheet is not prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. A statement of basis is sent to the applicant and, on request, to any other person by DWQ. (U.A.C. R317-8-6.3(6)).
14-UT-b.13 to 14-UT-b.14 – Public Notice and Comment Period
Public notice will be given by DWQ according to U.A.C. R317-8-6.5.
During the public comment period provided under U.A.C. R317-8-6.5, any interested person may submit written comments on the draft permit and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing must be in writing and state the nature of the issues proposed to be raised in the hearing. (U.A.C. R317-8-6.6). All comments will be considered in making the final decision and DWQ will answer all comments (U.A.C. R317-8-6.12).
The Executive Secretary of DWQ will hold a public hearing when he or she finds on the basis of request(s), a significant degree of public interest in draft permits. DWQ also may hold a public hearing at his or her discretion whenever a hearing might clarify one or more issues involved in the permit decision. (U.A.C. R317-8-6.1(4)).
14-UT-b.15 – Final UPDES Permit
UPDES permits are effective for a fixed term of 5 years and must be renewed at the end of the permitted period. Requirements for permit provisions can be found in U.A.C. R317-8-5 for more information. The developer must also comply with the schedule of compliance contained within individual permit provisions.
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