There are several proposed changes to the National Pollutant Discharge Elimination System (NPDES) program. Some of the changes are minor, while some are more significant and may warrant a closer look, if not concern.
General Overview of NPDES Proposed Changes
There are 15 proposed revisions in the NPDES regulations (See Proposed Rule, May 18, 2016: National Pollutant Discharge Elimination System (NPDES): Applications and Program Updates). These proposed changes fall into four general categories:
- Permit Application Requirements
- Water Quality-Based Permitting Process
- Permit Objection, Documentation and Process Effluent
- Vessels Exclusion Clean Water Act Section 401 Certification Process
The comment period was extended to August 2, 2016 (from July 18, 2016), following requests from stakeholders.
The EPA may Step in on Administratively Continued Permits
As to some of the concerns with the proposed changes, one of the areas of Environmental Protection Agency (EPA) focus is “Administratively Continued Permits.” Currently, states with permitting authority can extend existing permits while reviewing the new permit conditions. The EPA is concerned about the number of these extensions and the potential environmental impact of these extended permits.
According to the EPA, as of September 2015 there are 17,000 facilities covered by expired permits. Further, according to the Agency, “Under EPA’s existing regulations, there is no mechanism by which to invoke EPA’s permit review and objection authority to avoid indefinite delays in permit reissuance.” The EPA is proposing to establish the “mechanism” to review these permits.
According the notice in the Federal Register:
Under this proposed revision, expired permits that have been administratively continued and are considered environmentally significant may be subject to objections by EPA regional offices. EPA would expect to exercise this authority only in very limited circumstances, such as for permits involving environmental and public health issues, where other means of working with the state to reissue an updated permit have failed.
The EPA goes on to say, “Given the current backlog of administratively continued state permits, EPA views this proposed revision as providing an important potential mechanism through which to carry out its authorities under the CWA.”
While the EPA states that they will “exercise discretion” to use this authority, there are several openers that might trigger this review, including “Public concerns or environmental justice issues.” Given the propensity of activist groups to insert themselves into local issues, “public concerns” could be a fairly broad opener.
Also, this seems like a “low bar” to involve the EPA in states where authority has been granted under the Clean Water Act. Recall the mantra by those who were concerned about the Waters of the United States (or WOTUS rule); it was an EPA “power grab.” Similarly, the expansion of EPA’s authority under this proposed change could bring about legal challenges.
Re-Openers for federal NPDES Permits
The EPA is also addressing those facilities with federal permits (401 Certificates which are required if the applicant is seeking a federal license or permit). According to the proposed rule, NPDES permits could be modified after issuance if state or judicial decisions occur that include more stringent conditions. This could create uncertainty for permit holders.
Considering the potential reach into states with authority under the NPDES program, this proposed rule may raise some red flags and prompt calls for modification. As previously stated, the comment period has been extended to August 2, 2016.
If you have questions or require assistance with an environmental permit, please feel free to contact my colleagues, Jeffrey Bolin, M.S., CHMM (jbolin@dragun.com) or Matthew Schroeder, M.S., P.E. (mschroeder@dragun.com) at 248-932-0228.