Washington NPDES Permit (14-WA-b)
The Clean Water Act (CWA) required the Environmental Protection Agency (EPA) to establish the National Pollutant Discharge Elimination System (NPDES) program to require facilities discharging from a point source into waters of the United States to obtain discharge permits. The Washington State Department of Ecology (WSDE) administers the NPDES permitting program in Washington.
The NPDES permit describes:
- What the discharger must do to protect water quality;
- The types of monitoring and reporting the discharger must perform; and
- Limits on how much pollution can be discharged to maintain water quality.
No pollutants may be discharged to the waters of Washington from any point source, except as authorized by an Individual Permit issued pursuant to WAC 173-220, or as authorized through coverage under a General Permit pursuant to WAC 173-226. WAC 173-226-020 and WAC 173-220-020. A project may qualify for either an Individual NPDES Permit or for a General NPDES Permit. An individual permit is written for a specific discharge at a specific location. An individual permit is highly tailored to regulate the pollutants in the discharge.
A general permit is for a group of similar dischargers at diverse locations. Once issued, a general permit may cover many facilities quickly and efficiently. A general permit is appropriate when the characteristics of the discharge are similar and a standard set of permit requirements can effectively provide environmental protection. WSDE collects information about typical pollutants and discharge conditions from the targeted group and sets permit requirements to regulate a generalized set of pollutants and discharges.
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.</div>
NPDES Permit Process
14-WA-b.1 – Does the Discharge Qualify for a General Permit?
General Permits may be written to cover the following within a described area:
- Storm water sources; or
- Categories of dischargers that meet all of the following requirements:
- Involve the same or substantially similar types of operations;
- Discharge the same or substantially similar types of wastes;
- Require the same or substantially similar effluent limitations or operating conditions, and require similar monitoring; and
- In the opinion of the WSDE, pollutants are more appropriately controlled under a General Permit than under Individual Permits. WAC 173-226-050(3).
14-WA-b.2 to 14-WA-b.3 – Application for NPDES Permit and Associated Documents
Any person proposing to commence a discharge of pollutants to surface waters of the state must submit an application with WSDE on a prescribed form no less than 180 days in advance of the date the discharge will commence, or in sufficient time prior to commencement of the discharge to insure compliance with the requirements of section 306 FWPCA and any other applicable water quality standards or effluent standards and limitations. WAC 173-220-040(2).
The developer must submit an application to WSDE to be considered for the development of a general permit. WAC 173-226-060(1).
14-WA-b.4 – Provide Notice of Receipt of Application
WSDE will provide notice to the developer of receipt of application along with an estimate time for completion of the permit.
WSDE will respond to the application within 90 days of receipt. WAC 173-226-060.
14-WA-b.5 – Review Application Materials for Completeness
WSDE must review application materials for completeness.
14-WA-b.6 to 14-WA-b.7 – Is the Application Complete?
WSDE may request additional information from the developer to complete the application.
14-WA-b.8 – Evaluate Discharge for Pollutants
WSDE will evaluate discharges for pollutants in order to determine necessary effluent limits, Best Management Practices, special conditions, and monitoring requirements.
14-WA-b.9 – Develop Effluent Limits, Best Management Practices, Special Conditions, and Monitoring Requirements
Any permit issued by WSDE must apply and insure compliance with all of the following, whenever applicable. Any permit issued by WSDE must apply and insure compliance with all known, available, and reasonable methods of treatment required under RCW 90.52.040, RCW 90.54.020(3)(b), and RCW 90.48.520. Effluent limitations must not be less stringent than those based on the treatment facility design efficiency contained in approved engineering plans and reports or approved revisions. The effluent limitations must reflect any seasonal variation in industrial loading. WAC 173-220-130.
WSDE may attach terms and conditions to any Individual Permit. WAC 173-220-150(1).
Any General Permit issued by WSDE must apply and insure compliance with all of the following, whenever applicable:
- Effluent limitations and standards promulgated pursuant to the CWA;
- Discharge standards contained in WAC 173-221 and WAC 173-221A;
- Through the use of best management practices. WAC 173-226-070(1).
WSDE may establish schedules and permit conditions necessary to achieve compliance with applicable effluent standards and limitations, water quality standards, and other legally applicable requirements contained in a General Permit in any or all of the following ways:
- As a condition or schedule in a General Permit;
- In an administrative order issued pursuant to RCW 90.48; and
- By any other method deemed appropriate by WSDE. WAC 173-226-180(1).
14-WA-b.10 – Draft Permit, Fact Sheet, and Supporting Documents
WSDE must prepare a fact sheet for every draft permit determination. The fact sheet, at a minimum, must summarize the following:
- The type of facility or activity which is the subject of the application;
- The location of the discharge in the form of a sketch or detailed description;
- The type and quantity of the discharge, including:
- The rate or frequency of the proposed discharge;
- For thermal discharges, the average summer and winter discharges; and
- The average discharge in pounds per day, or other appropriate units, of any pollutants which are present in significant quantities or which are subject to limitations or prohibition under RCW 90.48.010
- The conditions in the proposed permit;
- The legal and technical grounds for the draft permit determination, including an explanation of how conditions meet both the technology-based and water quality-based requirements of FWPCA;
- The effluent standards and limitations applied to the proposed discharge;
- The applicable water quality standards, including identification of the uses for which receiving waters have been classified;
- How the draft permit addresses use or disposal of residual solids generated by wastewater treatment; and
- The procedures for the formulation of final determinations. WAC 173-220-060.
WSDE must prepare a fact sheet for every Draft General Permit. The fact sheet must summarize the following:
- The type of facility or activity which is the subject of the General Permit;
- The geographical area for which the General Permit is valid;
- The criteria for which coverage under a General Permit will be approved;
- A listing or some other means of identifying the facilities proposed to be covered under the General Permit;
- The information required by WAC 173-226-200(3), to be submitted as part of the application for coverage under the General Permit;
- The effluent characteristics for the category of dischargers being authorized under the General Permit, including the average rate or frequency of the proposed discharge and the average and estimated range in pounds per day of pollutants;
- The effluent standards and limitations applied;
- The applicable water quality standards, including identification of the uses for which receiving waters have been classified;
- The conditions in the proposed General Permit;
- The legal and technical grounds for the conditions contained in the General Permit;
- Any compliance schedules proposed as part of the General Permit;
- How the Draft Permit addresses use or disposal of residual solids generated by wastewater treatment;
- The procedures for the formulation of final determinations on issuing the General Permit. WAC 173-226-110.
14-WA-b.11 – Provide Public Notice of Draft Permit
The developer must provide public notice of the Draft Individual Permit. Notice must be circulated within the geographical area of the proposed discharge, and may include any of the following, as directed by WSDE:
- Posting by the developer for a period of 30 days in the post office, public library, and public places of the municipality nearest the premises of the developer in which the effluent source is located;
- Posting by the developer for a period of 30 days near the entrance of the developer’s premises and nearby places;
- Publishing by the developer, at their own cost, through a notice form provided by WSDE in major local newspapers of general circulation serving the area in which the discharge occurs;
- Publishing by the developer of paid advertisements; and
- Publishing by WSDE of news releases or newsletter articles. WAC 173-220-050(1)(a).
WSDE must prepare the contents of the public notice which, at a minimum, must summarize the following:
- Name, address, phone number of WSDE;
- Name and address of each developer, and if different, of the facility or activity to be regulated;
- Each developer’s activities or operations which result in a discharge;
- Name of waterway to which each discharge is made and the location of each discharge on the waterway, indicating whether such discharge is a new or an existing discharge;
- The procedures for the formulation of final determinations, including the 30 day comment period and any other means by which interested persons may comment upon those determinations; and
- Address and phone number of state premises at which interested persons may obtain further information. WAC 173-220-050(3).
WSDE must provide public notice of the draft permit. Public notice must be mailed to any person upon request, including all persons on the general permit specific mailing list. Public notice must also be circulated throughout the geographical area covered by the general permit. Circulation may include any or all of the following:
- Posting for a period of 30 days in post offices, public libraries, and public places within the geographical area covered by the general permit;
- Publishing the notice as a paid advertisement, display advertisement, or legal notice, in one or more major local newspaper of general circulation serving the area covered by the general permit; and
- Issuance of news releases, focus sheets, or newsletters. WAC 173-226-130(3)(a).
The contents of the Draft General Permit public notice must, at a minimum, summarize the following:
- The name, address, and phone number of WSDE;
- The type of facilities and activities which are the subject of the general permit;
- The geographical area for which the general permit is valid;
- The criteria for which coverage under a general permit will be approved;
- A listing or some other means of generally identifying the facilities proposed to be covered under the general permit;
- The tentative determination to issue a general permit;
- The procedures for the formulation of final determinations, including the 30 day comment period and any other means by which interested persons may comment upon those determinations;
- The address and phone number of state premises at which interested persons may obtain further information; and
- The date and time after which comments will not be considered by WSDE in formulating the final determination on the Draft General Permit. WAC 173-226-130(3)(f).
14-WA-b.12 – Comment on Draft Permit
WSDE must allow a period of not less than 30 days following the date of the public notice to allow interested persons to submit written comments on the draft permit. WAC 173-220-050(2) and WAC 173-226-130(3)(d).
WSDE must allow a period of not less than 30 days following the date of the public notice to allow interested persons to submit written comments on the draft permit. During the public comment period required for a Draft General Permit, WSDE must make all of the following available:
- The Draft General Permit;
- The fact sheet on the Draft General Permit required pursuant to WAC 173-226-110;
- The economic impact analysis required pursuant to WAC 173-226-120;
- A copy of the proposed application for coverage; and
- The notice required pursuant to WAC 173-226-130(3)(c). WAC 173-226-130(3)(e).
14-WA-b.13 to 14-WA-b.15 – Is there a Request for a Public Hearing?
The developer, any affected state, any affected interstate agency, any affected country, the regional administrator of the EPA, or any interested agency or person may request a public hearing with respect to a draft permit determination. Any request for a public hearing must be filed within the 30 day comment period and must indicate the interest of the party filing the request and the reasons why a hearing is warranted. WSDE must hold a hearing if it determines there is a significant public interest. Instances of doubt will be resolved in favor of holding a hearing. WAC 173-220-090.
WSDE must circulate public notice of any public hearing at least as widely as the notice for a Draft Individual Permit, and the public notice must include at least the following:
- Published in at least one major local newspaper of general circulation within the geographical area of the discharge;
- Sent to all persons and government agencies who received a copy of the notice for the Draft Individual Permit or the fact sheet;
- Mailed to any person upon request; and
- Provided at least 30 days before the public hearing. WAC 173-220-100.
The contents of the public notice for a hearing must include at least the following:
- Name, address, and phone number of WSDE;
- A reference to a public notice issued under WAC 173-220-050, including identification number and date of issuance;
- The time and location for the hearing;
- The purpose of the hearing;
- Address and phone number of the premises at which interested persons may obtain information;
- The nature of the hearing;
- The issues raised by the persons requesting the hearing, and any other appropriate issues which may be of interest to the public;
- The name and address of each developer whose proposed discharge will be considered at the hearing;
- The name of waterway to which each discharge is made and the location of each discharge on the waterway. WAC 173-220-100(2).
WSDE will hold one or more public hearings on all Draft General Permits. WAC 173-226-150(1). Any interested person may request a public hearing within 30 days of the last date of publication of the public notice of the Draft General Permit. WAC 173-226-150(3). The public hearing must be held during the public comment period. The date, time, and place of the public hearing will be at the discretion of WSDE provided:
- At least 30 days is provided between the time the public notice is published, and the time the hearing is held; and
- The hearing location is within the geographical area covered by the general permit. WAC 173-226-150(2).
14-WA-b.16 to 14-WA-b.17 – Is the Permit Granted with Favorable Conditions?
WSDE may approve, deny, or approve with conditions the Draft Permit. If the application is denied or is approved with conditions that the developer finds unfavorable, then they may appeal decisions of WSDE. The developer may appeal determinations by WSDE to the Pollution Control Hearings Board under RCW 43.21B.
WSDE may approve, deny, or approve with conditions the Draft Permit. If the application is approved with conditions that the developer finds unfavorable, then they may appeal the decision of WSDE. The terms and conditions of a General Permit as they apply to the appropriate class of dischargers are subject to appeal within 30 days of issuance of a General Permit in accordance with RCW 43.21B. WAC 173-226-190(1).
The terms and conditions of a General Permit, as they apply to an individual discharger, are appealable within 30 days of the effective date of coverage of that discharger. This appeal is limited to that individual discharger. WAC 173-226-190(2). The appeal of General Permit coverage of an individual discharger does not affect any other dischargers covered under the General Permit. If the terms and conditions of a General Permit are found to be inapplicable to any individual discharger(s), the matter must be remanded to WSDE for consideration of issuance of an Individual Permit. WAC 173-226-190(3).
14-WA-b.18 – NPDES Permit
WSDE will issue the final Individual NPDES Permit with all required conditions.
General permits become effective 30 days after the date of publication in the State Register of the public notice required pursuant to WAC 173-226-130(4)(a) unless a later date is specified by WSDE. WAC 173-226-170(4).
14-WA-b.19 – Provide Notice of Permit Decision
WSDE must provide a copy of the issued Individual Permit along with any terms, conditions, requirements, or documents to the Regional Administrator of the EPA. WAC 173-220-160.
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