Alaska Alaska Pollutant Discharge Elimination System Permit (14-AK-b)
The Clean Water Act prohibits the discharge of pollutants from a point source into a water of the United States unless the discharging facility has a wastewater discharge permit. The permit limits the types and amounts of substances that can be discharged and sets monitoring and reporting requirements and other provisions to ensure that the discharge does not harm water quality or human health. The Alaska Department of Environmental Conservation has primary authority for issuing most new NPDES permits in the state of Alaska.
DEC has the authority to regulate domestic, industrial, storm water, and mining-related discharges of pollutants into surface waters of the United States that are within Alaska or which occur in its territorial seas (within three miles of shore). Under the phased transfer of wastewater discharge permitting authority from EPA to ADEC, EPA retains oversight of oil and gas facilities until October 31, 2011.
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.
Alaska Pollutant Discharge Elimination System Permit Process
14-AK-b.1 - Will Project Fall Under an Existing General Permit's Characterization
APDES permits establish conditions and limits for the discharge of pollutants from domestic and industrial sources in Alaska. A general permit regulates discharges from more than one facility with similar wastewater characteristics in a defined geographical area (which can be statewide). An operator of a facility that meets the eligibility requirements of the general permit will be authorized to discharge waste after filing a Notice of Intent (NOI) with ADEC, so long as all conditions of the permit are met.
If the conditions for an existing general permit are not met, the developer must file an individual APDES permit application or petition the Alaska Department of Environmental Conservation to issue a new type of general permit.
14-AK-b.2 to 14-AK-b.3 - Notice of Intent
A developer seeking coverage under a general permit must submit a written notice of intent to be covered by a general permit (18 AAC 83.210(b)). A discharger who fails to submit a NOI is not authorized to discharge under a general permit unless the ADEC determines that notice of intent is not required for that specific general permit or the discharger is notifited that it is covered by a general permit by the Department (18 AAC 83.210).
14-AK-b.4 - Does Proposed Discharge Meet Eligibility Requirements of General Permit
If the proposed discharge does not meet the specific eligibility requirements of the general permit, ADEC will notify the developer that either, they do not require coverage under the APDES system, or the development will require an individual permit.
14-AK-b.5 - General Discharge Permit
ADEC will notify the applicant if their NOI has complied with all of the requirements to be covered under the specific general permit. Upon receiving notification that their project is in compliance with general permit conditions, the developer has authority to discharge under the conditions specified in the general permit.
14-AK-b.6 - Individual APDES Permit Application
An individual permit is issued to a single facility and its terms, limits, and conditions are specifically tailored to the unique aspects of that facility and the receiving water body.
14-AK-b.7 to 14-AK-b.8 - Review Application Materials for Completeness
The ADEC will not review application material unless they are complete and include all applicable required documents and fees.
14-AK-b.9 - Draft Discharge Permit and Fact Sheet for Public Notice
Prior to formal public notice of a draft APDES permit, ADEC regulations require that they post a preliminary draft permit on its website in conjunction with the permit applicant’s 10 day review of such permit (18 AAC 83.115(f)). While this review is primarily intended for the permittee to review and discuss the preliminary draft permit with ADEC, it also gives the public an early opportunity for review of the developing draft permit.
Notice that a draft permit is available for public review and comment is provided by a combination of mailings to agencies, local governments, and mail lists, newspaper advertisements, online public notice web posting, and other manners constituting legal notice. The public notice initiates a minimum 30-day public review and comment period (18 AAC 83.120(b)). Any unit of local government having jurisdiction over the area within which the facility or proposed facility is to be located must also be mailed a copy of the public notice (18 AAC 83.120(c)(1)(G)). The permit application and a fact sheet describing the terms of the permit are also made available during the public comment period.
14-AK-b.10 - Public Notice and Comment Period
Public notice is given through ADEC’s Water Permit Search webpage which allows you to find information about permtis, authorizations and certifications by facility name, site/facility, permit type, owner/operator, permit number, city, or zip code. The preliminary draft permit, fact sheet, and all associated documents will be posted during the 10-day applicant review period prior to formal public notice as well. However, all public comments must be submitted only during the 30-day minimum formal comment period.
14-AK-b.11 to 14-AK-b.12 - Is there Significant Interest in the Permit or a Public Request for a Hearing
14-AK-b.13 - Individual Discharge Permit and Response to Comments Document
After the close of the minimum 30-day public comment period, ADEC considers information provided by the public, prepares a document summarizing the public comments received on the draft permit, and may make changes to the draft permit. The resulting proposed final permit is made available to the applicant for a five-day review, unless the review period is waived in part or in whole by the applicant (18 AAC 83.120(m)). At the same time, ADEC posts the proposed final permit and supporting documentation on the ADEC web page where it is available to the public.
14-AK-b.14 - Proceed with Project Under Permit Conditions
The developer should proceed with their proposed development of geothermal resources in accordance with all permit conditions including reporting and notification requirements.
14-AK-b.15 - Apply for Re-Issuance or Authorization 180 Days Prior to Expiration of Permit
An APDES permit is effective for no more than five years. The permittee has the responsibility to apply for reissuance of a permit or authorization 180 days prior to the expiration date of the permit. In some cases, DEC may administratively extend a permit beyond five years. If a permit is administratively extended, the permittee is required to continue to follow the permit conditions until the new permit has been issued and to continue to pay annual permit fees.
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