RAPID/Roadmap/14-WV-b
West Virginia State Pollutant Discharge Elimination System Permit (14-WV-b)
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, West Virginia, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
State Pollutant Discharge Elimination System Permit Process
14-WV-b.1 - Determine Applicable NPDES Permit Type
The developer must determine which type of permit is applicable to the project. The NPDES program requires facilities discharging from a point source into waters of the U.S. to obtain discharge permits. (A point source is a conveyance such as a pipe or other point.) An NPDES permit contains limits on what can be discharged and other provisions to ensure that the discharge does not harm water quality or the public's health. WV NPDES Permits Webpage.
There are two basic types of NPDES permits:
- An individual permit is a permit written specifically for an individual facility.
- A general permit may cover multiple facilities within one industry, such as aquaculture, or may cover multiple facilities from different industries but that have a similar discharge, such as stormwater. General permits are only issued to dischargers within a specific geographical area.
14-WV-b.2 to 14-WV-b.3 - Does the Project Comply with General Permit Conditions?
To see a list of West Virginia general permits and information about their requirements, see the WV NPDES Permits Webpage for more information. One specific form of general permit that is likely to be required for any energy project is the construction stormwater permit. This permit is governed by the WV/NPDES program as a general permit, however it is covered in a different process flowchart (6-WV-b). For more information, see:
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, West Virginia Department of Environmental Protection will notify the applicant that their project meets the criteria. Then, they will be issued a general draft permit– WV. Admin. Code tit. 47, Ser. X, §§ 10.
14-WV-b.4 – Conduct WV/NPDES Antidegradation Review
The WVDEP must conduct an antidegradation review (ADR). 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 WV/NPDES permit or WV/NPDES permit reissuance. ADR reviews are conducted at three levels, which are referenced in West Virginia – WV. Admin. Code tit. 60, Ser. V, §§ 3 as Tier I, Tier II, and Tier III protections.
14-WV-b.5 – WV/NPDES Permit Application
Any person who requires a permit under the WV/NPDES program shall complete, sign and submit an Application to the Director of West Virginia Department of Environmental Protection. Developers must submit their application at least 180 days prior to beginning construction of the facility in question. If a facility covered under one of these permits is to be abandoned, the owner will need to apply for and obtain a permit at least 180 days prior to abandonment. WV. Admin. Code tit. 47, Ser. X, §§ 4.3. In West Virginia, developers should use the appropriate standard application form(s) for applying for a NPDES Permit. The forms, along with guidance for filling out an individual WV/NPDES permit application, can be accessed at the WV NPDES Permits Webpage.
14-WV-b.6 to 14-WV-b.7 – Review Application Materials for Completeness
The Director of DEP - Division of Water and Waste Management will not begin the processing of a permit until the applicant has fully complied with the application requirements for the permit, as required by WV. Admin. Code tit. 47, Ser. X, §§ 4.2.b
Each application submitted by a WV/NPDES new source or WV/NPDES new discharger should be reviewed for completeness by DEP - Division of Water and Waste Management within ninety (90) days of its receipt. Upon completing the review, the Director shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Director will list the information necessary to make the application complete in the notification to the applicant. WV. Admin. Code tit. 47, Ser. X, §§ 4.2.c
After the application is completed, the DEP - Division of Water and Waste Management Director may request additional information from an applicant when necessary to clarify, modify, or supplement previously submitted material. WV. Admin. Code tit. 47, Ser. X, §§ 4.2.c. 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 applicable provisions of state acts. WV. Admin. Code tit. 47, Ser. X, §§ 4.2.d. The DEP - Division of Water and Waste Management 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. WV. Admin. Code tit. 47, Ser. X, §§ 10.a
14-WV-b.8 – Draft WV/NPDES Permit
The DEP - Division of Water and Waste Management must issue a draft permit prepared in accordance with WV. Admin. Code tit. 47, Ser. X, §§ 10.b. The draft permit will contain the following information:
- (a) All conditions under WV. Admin. Code tit. 47, Ser. X, §5-6.
- (b) All compliance schedules;
- (c) All monitoring requirements;
- (d) Effluent limitations, standards, prohibitions, standards for sewage sludge use or disposal, and conditions. WV. Admin. Code tit. 47, Ser. X, §§ 10.c.
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. WV. Admin. Code tit. 47, Ser. X, §§ 11.1; 12.1.a.I.A.
A request for an adjudicatory proceeding may be made following the issuance of a final decision.
14-WV-b.9 to 14-WV-b.12 – Provide Public Notice to Begin Comment Period
The by DEP - Division of Water and Waste Management public notice of the Draft Permit and the beginning of the public comment period according to WV. Admin. Code tit. 47, Ser. X, §12.1.
During the public comment period provided under WV. Admin. Code tit. 47, Ser. X, §12.1, any interested person may submit written comments on the draft permit and may submit oral or written statements to the public hearing WV. Admin. Code tit. 47, Ser. X, §12.3.b.
The Director of the DEP - Division of Water and Waste Management may hold a public hearing when he or she finds, on the basis of request(s), a significant degree of public interest in draft permits. WV. Admin. Code tit. 47, Ser. X, §12.3.a.
The public comment period extends for 10 days after the public hearing.
The Director of the DEP - Division of Water and Waste Management must issue a response to all significant comments. WV. Admin. Code tit. 47, Ser. X, §12.5.a.2.
14-WV-b.13 – Final WV/NPDES Permit
WV/NPDES permits are effective for a fixed term of 5 years and must be renewed at the end of the permitted period. WV. Admin. Code tit. 47, Ser. X, §3.5.
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